ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-CV-192059

DATE: 20150903

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:

Joanna Birenbaum, for the National Centre for Truth and Reconciliation

Julian N. Falconer and Julian K. Roy, for the Truth and Reconciliation Commission of Canada

Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada

Dan Carroll, for the National Consortium

Stuart Wuttke, for the Assembly of First Nations

Peter R. Grant, Karenna Williams and Diane Soroka, for Independent Counsel

James S. Ehmann, for the Archiepiscopal Corporation of Regina

David M. Stack, Q.C., Michel Thibault, and Janine L. Harding, for Soeurs Grises de Montréal/Grey Nuns of Montréal and OMI Lacombe Canada Inc.

HEARING: In Writing

PERELL J.:

A. INTRODUCTION

[1] The National Centre for Truth and Reconciliation (“NCTR”) seeks to be added as a party to a Request for Direction (“RFD”) brought by the Truth and Reconciliation Commission (“the Commission”). The Commission’s RFD concerns the document production obligations of Canada and certain church entities under Schedule “N” to the Indian Residential Schools Settlement Agreement (the “IRSSA”).

[2] The NCTR submits it is a necessary party and should be granted full party status under Rule 5.03. In the alternative, it submits that it should be granted leave to intervene as a party under Rule 13.01 because it has an interest in, and may be adversely affected by, the outcome of the RFD.

[3] The Commission consents to NCTR’s request to be added as a party, and the Assembly of First Nations (“AFN”) supports this joinder. However, Canada, Independent Counsel, the Archiepiscopal Corporation of Regina, and two Catholic entities oppose the joinder. The National Consortium does not take a position on this motion.

[4] For the reasons that follow, I dismiss the NCTR’s motion.

B. BACKGROUND

1. The IRSSA

[5] For over a century, until the program finally ended in 1996, Aboriginal children were systematically removed from their families and communities and educated in "residential schools." The result was generations of Aboriginal youth growing up away from their families, language and culture. Many of these youth suffered sexual and other forms of abuse. Canada has conceded that the Indian Residential School (“IRS”) program was a misguided policy, and has formally apologized to Canada's First Nations people for its implementation.

[6] Between December 15, 2006 and January 15, 2007, the Superior Courts in nine provinces and territories issued reasons approving a national settlement concluding various class actions related to IRSs throughout Canada.[^1] The courts subsequently issued orders on March 8, 2007 that incorporated the terms of the IRSSA and addressed its implementation and administration. The courts’ ongoing supervision of the implementation of the IRSSA is performed in accordance with a schedule to the Implementation Orders; i.e., the Court Administration Protocol.

2. The Commission and the NCTR

[7] The IRSSA provides compensation for residential school survivors. Those who attended an IRS operated by Canada are entitled to a "Common Experience Payment", the amount of which is determined by the length of time they stayed at the IRS. Survivors of physical or sexual abuse are entitled to additional compensation by way of the Independent Assessment Process (‘IAP”).

[8] The IRSSA also provides for the establishment of a Truth and Reconciliation Commission to contribute to truth, healing and reconciliation. The Commission’s mandate is set out in Schedule “N” to the IRSSA. Part of the Commission’s role is to “[i]dentify sources and create as complete an historical record as possible of the IRS system and legacy” and ensure that this historical record is “preserved and made accessible to the public for future study and use.”[^2]

[9] To achieve this goal, the Commission is authorized to receive statements and documents from former IRS students and their families. It is also empowered to collect from Canada and the church entities “all relevant documents in their possession or control” subject to certain considerations of privacy and privilege.[^3]

[10] Canada and the church entities are obligated to “compile all relevant documents in an organized manner” for the Commission’s review and to provide the Commission with access to their archives so that the Commission can carry out its mandate.

[11] Pursuant to subsection 3(d) of Schedule “N”, the Commission established a “national research centre” to act as a repository and archive for the Commission’s record. It is the NCTR that plays the role of the national research centre. For present purposes, it is important to note that the roles of the Commission and of the NCTR are connected but they are very different roles. The Commission collects historical records and documents and prepares a report and the NCTR is an archive and research centre that will make the records and documents available.

[12] It is anticipated that after two extensions, the Commission’s mandate will expire on December 31, 2015. However, the NCTR will continue to be open to the public and, pursuant to subsection 10(c) of Schedule “N”, those affected by the IRS system and legacy may continue to file personal statements with the NCTR.

C. ISSUES

[13] The following issues arise from this motion: (1) Should the NCTR be granted full party status as a necessary party to the Commission’s RFD under Rule 5.03? and (2) In the alternative, should the NCTR be granted leave to intervene as a party under Rule 13.01?

D. DICUSSION AND ANALYSIS

Issue 1: Should the NCTR be joined as a necessary party under Rule 5.03?

[14] Under Rule 5.03 of the Rules of Civil Procedure, the court has jurisdiction to add, i.e. join, a party to a proceeding. Rule 5.03 provides:

5.03(1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.

(4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.

[15] In addition, the court has broad powers pursuant to s. 12 of the Class Proceedings Act, S.O. 1992, c. 6, to make any order it considers necessary to ensure the fair and expeditious determination of the class proceeding. Further still, the IRSSA authorizes the court to issue such orders as are necessary to implement and enforce the agreement: Fontaine v. Canada (Attorney General), 2014 ONSC 238, at paras. 165-166; Fontaine v. Canada (Attorney General), 2014 ONSC 3781, at para. 24.

[16] The NCTR submits that its participation as a full party to the RFD is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding. In particular, it submits that given the pending expiration of the Commission’s mandate, it is possible that any document production arising from the RFD may not be complete before the end of the mandate. It suggests that any production order will need to include provision for production of records directly to the NCTR after the end of the mandate, and it submits that as repository and archivist for the Commission’s historical record, it needs to be directly involved in any discussions or submissions on the form, timing, and process for production of documents. Therefore, it submits that it is a necessary party and should be joined as a party.

[17] I disagree for four reasons. First, the NCTR is not a “necessary party” in the legal sense of that term. The NCTR may be a “proper party,” but a “necessary party” is a person who must be, as a substantive legal matter, a participant in the litigation for the court to have jurisdiction or for the court to rule effectively on the matter in issue and make a binding determination.

[18] In Morden & Perell, The Law of Civil Procedure in Ontario (2nd ed.), (Markham: LexisNexis, 2014) at para. 4.262, I state:

Sometimes, the substantive law will require that a particular person or persons be joined as a party before the court will provide the plaintiff or applicant with a remedy and before the court will even hear the plaintiff’s or applicant’s claim, it may require that a person be made a party to the proceeding so that he or she may be bound by the judgment. Such a person is genuinely a necessary party. If a necessary party is not a party to the proceeding, then the proceedings will be improperly constituted, and the court may dismiss the claim unless the party is added.[^4]

[19] In this RFD, the absence of the NCTR will not affect the court’s substantive law jurisdiction to rule on the subject matter of the RFD.

[20] Second, as noted above, the RFD is concerned with the document production obligations of Canada and the church entities under Schedule “N” of the IRSSA. I agree with the argument of Canada, Independent Counsel, and the two Catholic entities that the IRSSA does not provide a role for the NCTR with respect to the collection of documents. The NCTR does not have any powers or responsibilities with respect to the document production issues that are the subject matter of the RFD.

[21] Third, I reject the argument that the pending expiration of the Commission’s mandate makes the NCTR’s participation in the RFD necessary. Once the Commission’s mandate expires, it will have no successor and the role it played in the IRSSA will not be passed on to the NCTR, whose role will continue on as an archive and research centre. Schedule “N” provides that the NCTR will continue to accept personal statements from those affected by the IRS legacy following the expiration of the Commission’s mandate. Schedule “N” does not impose an obligation on the NCTR to collect statements.

[22] Fourth, in any event, the RFD is not concerned with the matter of document production following the expiration of the Commission’s mandate. The RFD concerns the obligations of Canada and the church entities to produce documents to the Commission. The Commission is still in existence, and it is not necessary to add the NCTR as a party to make submissions on the issues that the court is actually being asked to consider.

[23] The NCTR’s participation as a party is not, therefore, necessary to the effective adjudication of the issues raised in the Commission’s RFD.

Issue Two: Should the NCTR be granted leave to intervene as a party under Rule 13.01?

[24] Pursuant to Rule 13.01, the court has jurisdiction to permit a person to intervene as a party where the person has an interest in the subject matter of the proceeding or may be adversely affected by a judgment in the proceeding. Rule 13.01 states:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by the judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact that is common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[25] The NCTR submits that even if it is not a necessary party to the RFD, it should be granted leave to intervene as a party because it has an interest in the proceeding and it may be adversely affected by the outcome of the proceeding. Again, the NCTR relies on the argument that, given the pending expiration of the Commission’s mandate, obligations may be imposed on the NCTR to receive documents and assure compliance with any terms or conditions imposed on the entity receiving those documents.

[26] As should be clear from my reasons above, I do not agree that the NCTR has a direct interest in or will be adversely affected by judgment in the Commission’s RFD any more than it would if the Commission’s mandate was extended into perpetuity. There is nothing to suggest that the RFD implicates the NCTR’s mandate as a repository and archive.

[27] Moreover, to be granted intervener status, the NCTR must demonstrate that the court’s ability to determine the issues before it would be enhanced by the intervention.[^5] It must be able to offer something more than a repetition of the Commission’s evidence and argument. In this case, the NCTR has failed to meet that burden. It does not provide any example of evidence it could offer that could not be adduced by the Commission itself.

[28] Finally, I agree with Canada that this case is distinguishable from the June 2014 Decision where the NCTR was granted full party status (i.e. Fontaine v. Canada (Attorney General), 2014 ONSC 3781).

[29] The June 2014 Decision pertained to the ultimate disposition of IAP records after the IAP is complete. As the ultimate repository for records under Schedule “N”, there was a possibility that the records would be sent to the NCTR if they were not ordered to be destroyed. The NCTR sought standing to be added as a party, arguing that its participation would assist the court because it could adduce evidence about the privacy laws, structures, policies and processes to protect the IAP records if they were archived with it. The NCTR argued that this evidence would show that it would serve as the most appropriate archive for the records.

[30] In that case, as the ultimate repository for documents pertaining to the IRS legacy, the NCTR clearly had an interest in the subject matter of the proceeding because the proceeding was directly focused on the ultimate disposition of such records. Moreover, there was a real possibility that the RFD would impose obligations on the NCTR. As I have already said, in this case, the RFD does not concern the ultimate disposition of records. It is concerned with the Commission’s mandate to collect records and the obligations on Canada and the churches to produce records to the Commission. Thus, the NCTR does not have a stake in the RFD, nor is it likely that the RFD will impose any obligations on the NCTR that extend beyond the NCTR’s existing mandate.

[31] The NCTR should not, therefore, be added as an intervening party. Although it may have an indirect interest in this proceeding, that interest can be adequately addressed by the Commission. The NCTR has failed to demonstrate that it will be adversely affected by judgment in the RFD or that the court’s ability to determine the issues in the RFD will be enhanced by the NCTR’s participation as a party.

E. DISPOSITION

[32] Therefore, the NCTR’s request for either full party status or intervener status in the Commission’s RFD is denied.

Perell, J.

Released: September 3, 2015

COURT FILE NO.: 00-CV-192059

DATE: 20150903

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: September 3, 2015

[^1]: Seven courts concurrently issued reasons on December 15, 2006 approving the IRSSA. Subsequently, reasons approving the IRSSA were issued by the Nunavut Court of Justice on December 19, 2006 and the Supreme Court of the Northwest Territories on January 15, 2007.

[^2]: IRSSA, Schedule “N”, s. 1(e).

[^3]: IRSSA, Schedule “N”, s. 11.

[^4]: Muscat v. Camilleri, 1974 838 (ON SC), [1974] O.J. No. 1810, 2 O.R. (2d) 459 (Ont. H.C.J.).

[^5]: Fontaine v. Canada (Attorney General), 2014 ONSC 3781 at para. 21.