ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-CV-192059
DATE: 20150817

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
• Catherine A. Coughlan and Brent Thompson for the Attorney General of Canada
• Ted Frankel for the General Synod of the Anglican Church of Canada

HEARING DATE: In writing

PERELL, J.

REASONS FOR DECISION - SUPPLEMENTARY

[1] These supplementary reasons are being released because the parties cannot agree about the form of the Order for a Request for Directions (“RFD”) that I decided and that is reported as Fontaine v. Canada (Attorney General), 2015 ONSC 3611.

[2] The RFD was brought by nine claimants in the Independent Assessment Process (“IAP”), each of whom claims to have been a resident student at Bishop Horden Indian Residential School (“Bishop Horden IRS”).

[3] Each of the nine applicants alleged that documents substantiating the allegations made in their IAP claims exist but were not referenced in either the Bishop Horden IRS Narrative or the relevant Person of Interest (“POI”) Reports prepared by Canada in accordance with Appendix VIII to Schedule “D” of the Indian Residential Schools Settlement Agreement (“IRSSA”). In particular, the Applicant in IAP claim S-11816 alleged that Canada possesses documents relating to the assault of a fellow classmate at Bishop Horden IRS witnessed by her, and which she claims resulted in the termination of the school’s principal and the arrest of two supervisors.

[4] In their RFD, the Applicants sought direction:

1. compelling the Deputy Attorney General of Canada to answer questions refused during the cross-examinations of Eric Guimond, conducted March 31, 2015;
2. compelling Canada to conduct additional searches of various government departments for documents relevant to alleged abuses at Bishop Horden;
3. requiring Canada to produce any additional documents relevant to the IAP process that it may have in its possession; and,
4. requiring the Indian Residential Schools Adjudication Secretariat to establish a “witness-matching” program.

[5] The parties have been unable to agree on the form and content of the Order. The Applicants submit one draft order, while Canada and the General Synod of the Anglican Church (supported by the Chief Adjudicator) jointly submit another. The Association of First Nations has not taken any position with respect to the drafts.

[6] The portions of the Decision most relevant to the Order are as follows:

[77] These interpretative clues and the factual matrix of the negotiations of the IRSSA lead me to the penultimate conclusion that with a qualification for requested documents and for documents that may be found that mention abuse, the parties to the IRSSA intended to adopt the collection standards of the ADR Model for the IAP.

[78] My ultimate interpretative conclusion is that where an Applicant in his or her Application identifies the approximate time and place of a particular incident of abuse with sufficient particularity to allow document searches to be made, then Canada is obliged to respond to the Applicant’s request for the documents that may provide information about the incident of abuse.

[79] Applying that interpretation to the circumstances of the immediate case and given that Canada admitted that it had not directly collected documents from the RCMP detachment at Moose Factory, Canada breached its obligations under Schedule D, Appendix VIII.

[80] The remedy for this breach of contract is obvious. I grant the request that Canada be compelled to conduct additional searches with the RCMP for documents relevant to the alleged assault in the girl’s dorm at Bishop Horden IRS.

[81]The other related requests are dismissed. They overreach Canada’s obligations under the IAP.

[82] Before moving on, I note that there may be other circumstances where Canada has ongoing collection obligations but each case will have to be decided on its own merits. Unfortunately, as noted above, the IRSSA is not precise or comprehensive in its treatment of Canada’s obligations under Schedule D, Appendix VIII.

[7] The principal difference between the Applicants’ and Respondents’ Orders is one of breadth. The Respondents submit that the terms of the Order should reflect only paragraphs 80 and 81 of the Decision. In contrast, the Applicants seek to include in the Order the substance of paragraph 78 of the Decision. Specifically, the Applicants’ Order contains the following language at paragraphs 1 and 2:

THIS COURT ORDERS AND DIRECTS that where an IAP claimant, in his or her Application, identifies the approximate time and place of a particular incident of abuse with sufficient particularity to allow document searches to be made, Canada is obligated to respond to the Applicant’s request for the documents that may provide information about the incident of abuse.

THIS COURT FURTHER ORDERS AND DIRECTS that Canada is also obligated to produce documents that are found that mention abuse of IRS children and make the necessary amendments to the corresponding IRS narrative and POI reports;

[8] The Applicants and Respondents agree that in accordance with paragraph 80 of the decision, the Order should compel a search of RCMP documents in relation to the assault allegation particularized in IAP Claim S-11816, and that the search include the RCMP in Moose Factory. However, with respect to the carrying out of the search, the draft orders differ as follows:

• The Applicants’ Order provides that the search should be done by Canada, while the Respondents’ Order provides that it be done by the RCMP.

• The Applicants’ Order provides for Canada to update the Bishop Horden Narrative and POI Reports to reflect any documents found in the search while the Respondents’ Order is silent in this respect; and

• The Applicants’ Order compels Canada to produce any documents found in the search while the Respondent makes those documents producible on request.

[9] The parties agree that the Order should dismiss the balance of the relief sound by the Applicants.

[10] The Applicant’s version of the Order is overbroad. Paragraph 10 of the Respondents’ joint submissions states, correctly, that “[t]he operative part of an order should describe the result, but not the reasoning that led to that result.”

[11] The Respondents are right to suggest that the language at paragraph 1 and 2 of the Applicants’ Order contains reference to the Decision’s Reasons, as distinguished from the relief granted by it.

[12] Paragraph 78 of the Decision contains a general statement interpreting Canada’s obligations under Schedule “D” of the IRSSA. Paragraph 80 thereof sets out the appropriate relief in light of the finding that Canada breached those obligations. The language proposed by the Applicants would amount to a declaration of the rights and obligations of the parties of the IRSSA, which relief was neither requested by the RFD nor granted in the Decision. The terms of the Draft Order should be limited to carrying out the remedy as set out in paragraph 80.

[13] However, the Respondents’ version of the Order is overly narrow.

[14] The parties disagree on certain elements of the search provided for at paragraph 80 of the decision. As a preliminary matter, paragraph 80 clearly designates Canada as responsible for carrying out the documentary search, and so it is Canada, not the RCMP, that should be tasked with doing so in the Draft Order. That is consistent with the IRSSA’s imposition of duties on Canada. While it may be a matter of administrative convenience for Canada that the responsible department or agency be identified, that is not for the Court to do in the Order.

[15] To the extent that the parties disagree as to what is to be done with any documents obtained as a result of Canada’s search, the Draft Order should reflect the language of the IRSSA, and in particular Appendix VIII of Schedule “D”, which provides:

The government will also search for, collect and provide a report about the persons named in the Application Form as having abused the Claimant, including information about those persons’ jobs at the residential school and the dates they worked or were there, as well as any allegations of physical or sexual abuse committed by such persons, where such allegations were made while the person was an employee or student.

Upon request, the Claimant or their lawyer will receive copies of the documents located by the government, but information about other students or other persons named in the documents (other than alleged perpetrators of abuse) will be blacked out to protect each person’s personal information, as required by the Privacy Act.

The government will also gather documents about the residential school the Claimant attended, and will write a report summarizing those documents. The report and, upon request, the documents will be available for the Claimant or their lawyer to review.

[16] In sum, Canada’s disclosure obligations pursuant to Appendix VIII of Schedule “D” require it to: (i) search for documents, (ii) provide POI Reports and IRS Narratives on the basis thereof, and (iii) provide relevant documents, with necessary redactions, to IAP claimants on request.

[17] Any new documents obtained pursuant to the Order should receive the same treatment as any other document produced by Canada. Canada should, therefore, be obliged to update, as necessary, the Bishop Horden IRS Narrative (or that of any other IRS) and any POI Reports with relevant documents produced by its additional sweep. Likewise, those documents should be produced to IAP Applicants as appropriate and on request.

[18] I have incorporated this analysis in the Order attached as Schedule “A”.

Perell, J.

Released: August 17, 2015

Schedule “A”

Court File No. 00-CV-192059CP

ONTARIO
SUPERIOR COURT OF JUSTICE

THE HONOURABLE
JUSTICE PERELL

MONDAY,
the 17th day of
August, 2015

BETWEEN:

[style of cause]

Proceedings under the Class Proceedings Act, 1992, S.O. 1992. C.6

ORDER

THIS REQUEST FOR DIRECTIONS, made by nine individuals (the “Applicants”) with claims numbered S-11816, Q-10111, F-12921, F-10547, L-11068, M-17743, M-18635, S-18348, and K-14990 in the Independent Assessment Process (“IAP”), seeking directions from the Court: (1) compelling the Deputy Attorney General of Canada to answer questions refused during the cross-examinations of Eric Guimond, conducted March 31, 2015; (2) compelling Canada to conduct additional searches of various government departments for documents relevant to alleged abuses at Bishop Horden Indian Residential School (“Bishop Horden IRS”); (3) requiring Canada to produce any additional documents relevant to the IAP process that it may have in its possession; and, (4) requiring the Indian Residential Schools Adjudication Secretariat (the “Secretariat”) to establish a “witness-matching” program, was heard on May 20, 2015, at Osgoode Hall, 130 Queen St. W, Toronto, ON, M5H 4G1;

ON READING the Applicants’ Request for Directions dated November 27, 2014, and the Applicants’ Amended Request for Direction dated April 22, 2015;

AND ON READING the materials filed by the Applicants, Canada, the Assembly of First Nations (the “AFN”), the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat, and the General Synod of the Anglican Church of Canada, and on hearing the submissions of counsel for each party:

1. THIS COURT ORDERS that by September 1, 2015 Canada shall:

(a) Conduct additional searches, including searches of the records of the RCMP detachment in Moose Factory, for documents relevant to the assault that is alleged in IAP claim S-11816 to have occurred in the girls’ dormitory at Bishop Horden IRS in the mid-1960s;

(b) Revise the Bishop Horden Narrative and Person of Interest Reports to include any relevant information contained in the documents located as per Subparagraph 1(a) above; and

(c) Produce any documents located as per Subparagraph 1(a) above to the Applicants in respect of their IAP claims where active and upon request.

2. THIS COURT DISMISSES the balance of the relief sought.

3. THIS COURT ORDERS that if the Applicants, AFN and Canada cannot reach an agreement with respect to costs, including the scale of costs, the Applicants and the AFN may make their submissions to this Court in writing no later than 30 days from the date of this Order, and Canada may make their submissions to this Court in writing no later than 14 days thereafter, which deadlines are subject to variation as agreed upon by the parties.

COURT FILE NO.: 00-CV-192059
DATE: 20150817

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 - SUPPLEMENARY

Perell, J.

Released: August 17, 2015