Fontaine v. Canada (Attorney General), 2015 ONSC 3185
COURT FILE NO.: 00-CV-192059
DATE:20150519
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:
• Ben Piper for the Applicants
• Catherine A. Coughlan and Brent Thompson for the Attorney General of Canada
HEARING DATES: Written submissions
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] This is a refusals motion in a Request for Directions (“RFD”) for the Independent Assessment Process (“IAP”) under the Indian Residential Schools Settlement Agreement (“IRSSA”). The Applicants, who are the moving parties for this refusals motion, are approximately 50 former students of St. Anne’s and Bishop Horden IRSs that have made claims for compensation under the IAP.
[2] For the reasons that follow, I dismiss the refusals motion.
B. BACKGROUND TO THE RFD
[3] In a previous endorsement on an interlocutory matter in this RFD (See Fontaine v. Canada (Attorney General), 2015 ONSC 2982), I provided the following summary of the background to the RFD:
The Applicants, who number approximately 50, are former students of St. Anne’s and Bishop Horden IRSs, who have made claims for compensation under the IAP. Their claims have not yet concluded. They have filed an RFD in relation to their claims.
The Applicants assert in the RFD that Canada has not complied with its production obligations under the IRSSA, including its obligations pursuant this Court’s January 14, 2014 order, which was the result of a previous RFD involving St. Anne’s: see Fontaine v. Canada (Attorney General), 2014 ONSC 283. Among the Applicants’ present complaints are that documents produced by Canada have been redacted beyond what is called for by the terms of the IRSSA, and that Canada has not provided an adequate school narrative for St. Anne’s IRS, or adequate POI reports for claims involving St. Anne’s IRS, having regard to the thousands of new supporting documents disclosed by Canada in June 2014.
They seek various orders in this latest RFD (styled by the Applicants as a “Return of Request for Directions”), including the production of unredacted source documents to the Secretariat; the production of less extensively redacted source documents to claimants and their counsel for hearings involving St. Anne’s; and the production of revised narratives and POI reports for St. Anne’s. The Applicants also ask that these orders apply equally to Bishop Horden IRS.
[4] Specifically, the relief sought by the Applicants on the RFD is:
• An Order that Canada shall produce to the Secretariat under Appendix IV, unredacted copies of the source documents, including documents provided pursuant to the January 14, 2014 Order pertaining to sexual or physical abuse at St. Anne’s IRS to the Secretariat.
• An Order that Canada shall provide claimants and claimants' counsel for hearings involving St. Anne’s IRS with copies of all source documents, including the additional documents provided pursuant to the January 14, 2014 Order, with redactions only as specifically required by Schedule “D” to the IRSSA, which will be determined by this Court.
• An Order that Canada shall provide a further revised narrative for St. Anne’s IRS which adequately and effectively summarizes and categorizes the source documents, including those provided pursuant to the January 14, 2014 Order, pertaining to sexual or physical abuse at St. Anne’s IRS to the Secretariat, for use by adjudicators, claimants and claimants’ counsel.
• An Order that Canada shall provide revised POI (“Person of Interest”) Reports for St. Anne’s IRS cases containing a useful and effective summary and categorization of the source documents including the additional documents provided pursuant to the January 14, 2014 Order, pertaining to sexual or physical abuse at St. Anne’s IRS to the Secretariat, for use by adjudicators, claimants and claimant counsel.
• An Order that any Orders made by the Court with respect to the redaction of documents and format of the school narrative and POI Reports for St. Anne’s IRS apply with equal force to Bishop Horden IRS.
[5] With respect to their request for a further revised narrative for St. Anne’s IRS and for revised POI reports, the Applicants plead in their RFD that:
• The narrative and POI reports do not comply with the terms or spirit of the IAP model, nor the expedited and expediency goals of advance disclosure to adjudicators for an inquisitory hearing process.
• The revised narrative for St. Anne’s IRS from Canada does not provide an adequate or useful summary for adjudicators or claimants of the thousands of documents that have been added to the source documents nor does it categorize the source documents in a manner that would be useable by adjudicators, claimants or claimants’ counsel in each IAP hearing.
• The source documents for the narrative, including documents that are in the public record, are heavily redacted.
• The revised POI reports for St. Anne’s IRS from Canada do not provide an adequate or useful summary of the contents of each source document as it pertains to the POI; there are often thousands of pages of new source documents that every adjudicator and claimant must review for each IAP hearing to determine if the document is possibly relevant to the IAP hearing in question; and
• The source documents for the POI reports, including documents that are in the public record, are heavily redacted.
C. THE APPLICANTS’ REFUSALS MOTION
[6] The Applicants seek to challenge certain refusals made on the cross-examination of Mr. Eric Guimond, one of Canada’s affiants. The refusals relate to the manner in which Canada engages in “coding” of documents related to St. Anne’s IRS, and to Canada’s capabilities for reporting and extracting information, where coding has been applied. The refusals all relate to questions posed by Applicants’ counsel about the coding process, which Mr. Guimond was not able to answer and on which Canada refused to provide undertakings to obtain an answer or produce relevant documents.
[7] In Mr. Guimond’s affidavit, sworn January 30, 2015, he testified that:
- In response to the January 14, 2014 Order, AANDC has undertaken various efforts to ensure its compliance, including the procurement of documents from the Ontario Provincial Police (“OPP”) regarding investigations into St. Anne’s IRS, the procurement of civil and criminal litigation files relating to St. Anne’s IRS from the Department of Justice Canada (“DOJ”), the coding and redaction of these documents, and the provision of these documents to the Truth and Reconciliation Commission (the “Commission”) and the Indian Residential Schools Adjudication Secretariat (“IRSAS”) in accordance with the Order.
[8] During Mr. Guimond’s examination, there was some questioning about the process used in “coding” documents. Mr. Guimond described how documents received for the IAP are entered into a database, and “specific fields” are used “to describe each of these entries.” He agreed that codes applied to a given document were “like tags that are applied to a document that identify some characteristic of that document.” Mr. Guimond noted that “to be able to search the database, you will rely on these different fields and you will use search criteria based on these different fields to extract the information you need.” As to the process for coding, Mr. Guimond explained that “there are instructions provided to individuals in terms of how the coding should be done.” He testified that there were "elements" of these instructions that were written down.
[9] Mr. Guimond, however, refused to answer some questions. To be more precise, his refusals were as follows:
• Question 45: To provide a list of the fields that were used for coding the additional disclosure documents for St. Anne’s IRS. (“Refusal 1”)
• Questions 125-31: To provide the instructions given to individuals, as to how coding/describing the documents should be done, with respect to the additional disclosure documents for St. Anne’s IRS. (“Refusal 2”)
• Questions 183-84: To advise if once coding is applied to a document, a report or an extraction can be requested that identifies the documents that have that tag or code applied to it. (“Refusal 3”)
• Question 188: To advise if codes are also applied to portions of a text within a document. (“Refusal 4”)
• Questions 188-190: To provide information as to if a code can be applied to a portion of text and then request a report or an extraction, or some frequency analysis that would generate every portion of text to which the code had been applied. (“Refusal 5”)
D. THE POSITION OF THE PARTIES
1. The Applicants’ Position
[10] In the RFD, the Applicants submit that the revised narrative and POI reports for St. Anne’s IRS do not provide an adequate or useful summary of the thousands of documents that have been added to the source documents, or categorize the source documents in a manner that would be useable by adjudicators, claimants or claimants’ counsel in IAP hearings. The Applicants submit that information about the coding process used by Canada is relevant to the issues in the RFD. In particular, the nature of this database, the fields or codes that are applied to the source documents, and Canada's ability to easily retrieve this information is relevant “in assessing Canada's willingness or capacity to categorize or summarize the source documents”.
[11] Alternatively, the Applicants submit that Mr. Guimond’s affidavit puts the manner in which Canada “codes” documents in issue and, therefore, relying on the authority of my judgment in Parker v. Pfizer Canada Inc., 2012 ONSC 1652, the Applicants submit that they are entitled to cross-examine Mr. Guimond on this issue “even if it is irrelevant and immaterial”.
2. Canada’s Position
[12] Primarily, Canada asserts litigation privilege over the information. Canada submits that the coding of documents has been specifically undertaken as part of Canada's response to previous court proceedings in this matter, and for the particular purpose of fulfilling Canada's report-writing function set out in Appendix VIII to the IAP model. Canada submits that given the litigious aspects of the IAP, Canada’s work product behind the report it has produced for the purposes of the IAP is within the “zone of privacy”. It says that the specific technologies or mechanisms applied or available to it are part of Canada’s litigation privilege. Canada submits that it has not waived litigation privilege in respect of any demands advanced and that a mere reference to coding in the Affidavit of Eric Guimond does not waive privilege in relation to Canada’s coding metadata or indices, or information about its coding technologies.
[13] Further, Canada asserts that the Applicants’ request is outside the proper scope of the cross-examination of Mr. Guimond, raising issues of prematurity and relevance. Insofar as the Applicants request the production of Canada’s metadata actually used in the coding of the OPP documents, or the instructions therefor, Canada submits that the request is premature, and would tend to provide the relief sought by the Applicants on the RFD. In other words, Canada submits that the premature demands ask the Court to interpret Canada’s obligations under the IRSSA as requiring it to produce such metadata.
[14] Canada submits that, in any event, this RFD involves Canada’s reporting obligations under Appendix VIII and the contents thereof and not how Canada compiles information or analyzes documents for reference in a mandatory report. It submits that the circumstance that the documents are coded does not open the door for the Applicants to investigate every aspect of that coding, or to second-guess what could have been done differently.
[15] Finally, Canada challenges the Applicants’ standing to make such generalized requests for information. In Canada’s submission, only Applicants with active claims in the IAP have standing to raise issues regarding Canada’s obligations under the IAP model, including with respect to the IRSSA.
3. The Applicants’ Reply Position
[16] According to the Applicants, litigation privilege is inapplicable, and Canada’s argument in this regard grossly misapprehends its dual roles in the IAP, which is part litigious and part administrative to facilitate the process of the IAP.
[17] In their reply submissions, the Applicants submit that there is no evidence that Canada’s “coding” procedure was done in contemplation of advancing its cause in an adversarial process – rather, it was done in order to produce school narratives and POI reports for use by all parties in the IAP. Accordingly, the Applicants argue that the documents or information that Canada has prepared in its function as administrator of the IRSSA are relevant to this RFD and not protected by litigation privilege.
[18] In reply, the Applicants’ reiterated their argument that information requested is relevant to the outcome of the IAP.
E. DISCUSSION AND ANALYSIS
[19] To decide this refusals motion, it is not necessary for me to address all of the arguments of the parties, and, in particular, it is not necessary for me to express an opinion about the Applicants’ standing or Canada’s claim of litigation privilege. Rather, in my opinion, the refused questions need not be answered because I am not persuaded that the Applicants’ line of questioning is relevant to the RFD, and, in my opinion, if the questions are relevant the answers would be of little utility; i.e., the line of questioning does not satisfy the proportionality principle.
[20] In respect of the narrative and POI reports, what the RFD requires is for the Court to determine an issue of interpretation of the IRSSA. Under the RFD, the Applicants seek directions from the Court about: (a) what is the nature of the work product that Canada is required to deliver under the IRSSA, and (b) whether the narrative and POI reports that Canada has delivered meet that standard. I do not see the relevance of how Canada does or could use coding and its information technology as helping in determining the RFD, which is essentially a matter of contract interpretation.
[21] I appreciate that that Mr. Guimond mentioned coding in his affidavit. However, proportionality and the nature of the RFD are important factors in determining the proper scope of an examination and in my opinion, Canada was justified in refusing to give the undertakings requested.
F. CONCLUSION
[22] For these reasons, I dismiss the Applicants’ refusals motion. Costs of these submissions may be dealt with in the context of the costs of the RFD.
Perell, J.
Released: May 19, 2015
COURT FILE NO.: 00-CV-192059
DATE: 20150519
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: May 19, 2015