COURT FILE NO.: 00-CV-192059

DATE:20151113

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:

• E. Anthony Ross, Q.C. and Katrina Marciniak for the Applicants

• Leona K. Tesar for the Attorney General of Canada

HEARING DATES: Written submissions

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] This is a bizarre and a lamentable motion. It is a motion by “Somebody” for an advance costs award in the administration of the Indian Residential Schools Settlement Agreement (“IRSSA”). Bizarrely, there is a dispute about whom the moving party is for the advance costs award.

[2] There is no dispute about whom the responding party is; it is Canada, which resists the motion for an advance costs award. Canada says that the moving party is Edward G. Sadowski. Canada submits that Mr. Sadowski, who is not an Aboriginal, initiated a Request for Directions (“RFD”) under the IRSSA. Canada submits that it is Mr. Sadowski who is asking for an advance costs award. Therefore, Canada argues that Mr. Sadowski, who would not disclose his assets, does not meet the criteria for an advance costs award.

[3] Mr. Sadowski, who has nothing personal to gain from this matter – and who undoubtedly does not meet the criteria for an advance costs award - says that the request for advance costs is not his request, but rather it is the request of Ruth Ann Henry, neé Beardy, who supported the motion with an affidavit.

[4] Mrs. Henry, who does have something personal to gain, and her lawyer, say that she is the moving party. But Canada disagrees with Mrs. Henry and her lawyer, and Canada says that the disabled, unemployed, impoverished, 82-year-old Mrs. Henry is just a front for Mr. Sadowski and his unmeritorious RFD.

[5] Mr. Sadowski says that the RFD - which he did indeed initiate - was made on behalf of Mrs. Henry, Mr. Saul Day, and other Aboriginals who were students at the Fort William Sanatorium School, which operated on the grounds of the Fort William Sanatorium in what is now Thunder Bay, Ontario. The purpose of the RFD initiated by Mr. Sadowski is to have the Fort William Sanatorium School declared to be an Indian Residential School (“IRS”) and to have it added to the list of schools under Schedule “F” of the IRSSA.

[6] Mrs. Henry was a student at the Sanatorium School. She was hospitalized at the Sanatorium for one year in 1941, when she was eight years old, and again between 1945 and 1948. She is a member of the Ochiichagwe’Babigo’Inning Ojibway Nation (Dalles First Nation). She is partially paralyzed on her left side from a neck injury. She is disabled and unemployed. She lives entirely on old age pension payments of $15,744 per year, and she resides at a senior’s home in Kenora, Ontario. Her relatives have no money to lend her. Mrs. Henry has volunteered to act as a representative on behalf of the students of the Fort William Sanatorium School. She supports the request for an advance costs award. For the reasons that follow, I find that Mrs. Henry is the “Somebody” bringing the advance costs motion.

[7] It is a lamentable motion, because, for a variety of reasons, “Nobody” was prepared to provide legal services to Mrs. Henry, unless she obtained an advance costs award for the RFD. At least 18 lawyers were asked to take the legal brief, but for a variety of reasons, they all declined. In the discussion below, I shall identify most of them by initials, because I do not wish to shame them, and because having regard to the entrepreneurial access to justice model that governs class proceedings, it is understandable, but sad, that all the lawyers declined the Sanatorium School RFD brief.

[8] Whatever the bizarreness and the sadness, for the reasons that follow, I have decided that Mrs. Henry does qualify for an advance costs award.

[9] The RFD brief goes to E. Anthony Ross, Q.C. and Katrina Marciniak. I grant Mrs. Henry request for an advance costs award of $70,000 inclusive of counsel fees, disbursements, expert fees, and taxes subject to an assessment of costs later. If necessary, they may apply for further advance costs. The advance costs are to be paid by Canada forthwith. I also award Mrs. Henry her costs for this motion.

B. FACTUAL AND PROCEDURAL BACKGROUND

1. The Designation of IRSs under the IRSSA

[10] The IRSSA is a contract. It was signed on April 24, 2006 after extensive negotiations with the Defendants and with the representatives of the survivors of the IRSs, which included Inuit groups and the Assembly of First Nations. The IRSSA settled numerous class action and individual lawsuits against Canada, which established the Indian Residential School policy, and against the numerous Anglican, Baptist, Episcopal, Methodist Presbyterian, Roman Catholic, and United churches, charities, and missionary societies that operated the schools and whose teachers, sisters, and brothers committed the atrocities that occurred at the schools.

[11] 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. 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.

[12] There are four major components to the IRSSA:

• One, Canada placed $1.9 billion into a trust fund to fund payments of the “Common Experience Payment” to Class Members who resided at an IRS during the class period. Based on residence eligibility, a Class Member receives $10,000.00 for the first year and $3,000.00 for each additional year at any acknowledged IRS.

• Two, the IRSSA established the Independent Assessment Process (“IAP”) under which Class Members who suffered physical or sexual abuse at an IRS may claim compensation commensurate with the seriousness of their injuries. Schedule “D” to the IRSSA provides that an individual IAP claimant may receive compensation of up to $525,000.00; a maximum of $275,000.00 in relation to sexual and physical assaults and other wrongful acts, and up to a further $250,000.00 for “proven actual income loss”. Canada’s liability to fund the IAP is uncapped.

• Three, the IRSSA established the Truth and Reconciliation Commission with a mandate to create an historical record of the Indian Residential School system to be preserved and made accessible to the public for future study.

• Four, Class Members release their legal claims in exchange for the benefits of the IRSSA. The releases extended to Canada and the Church Entities who were the named Defendants.

[13] Identifying an institution as an IRS is a threshold to determining whether an individual is eligible for compensation under the IRSSA: Fontaine v. Canada (Attorney General), 2011 ONSC 4938 at para. 68.

[14] The IRSSA defines “Indian Residential School” as falling within three defined categories: (1) Institutions listed in Schedule “E”; (2) Institutions listed in Schedule “F” (“Additional Residential Schools”); and (3) institutions added to Schedule “F” from time to time in accordance with Article 12. At the time the IRSSA was approved, over 130 eligible schools and other institutions were identified and listed under Schedules “E” or “F” of the IRSSA.

[15] Pursuant to Article 12, any person or organization (the “Requestor”) may apply to add an institution to the list of IRSs in Schedule “F”. Article 12 of the IRSSA, provides:

ARTICLE TWELVE

ADDITIONAL INDIAN RESIDENTIAL SCHOOLS

12.01 Request to Add Institution

(1) Any person or organization (the “Requestor”) may request that an institution be added to Schedule “F”, in accordance with the criteria set out in Section 12.01(2) of this Agreement, by submitting the name of the institution and any relevant information in the Requestor’s possession to Canada;

(2) The criteria for adding an institution to Schedule “F” are:

(a) The child was placed in a residence away from the family home by or under the authority of Canada for the purposes of education; and,

(b) Canada was jointly or solely responsible for the operation of the residence and care of the children resident there.

(3) Indicators that Canada was jointly or solely responsible for the operation of the residence and care of children there include, but are not limited to, whether:

(a) The institution was federally owned;

(b) Canada stood as the parent to the child;

(c) Canada was at least partially responsible for the administration of the institution;

(d) Canada inspected or had a right to inspect the institution; or,

(e) Canada did or did not stipulate the institution as an IRS.

(4) Within 60 days of receiving a request to add an institution to Schedule “F”, Canada will research the proposed institution and determine whether it is an Indian Residential School as defined in this Agreement and will provide both the Requestor and the NAC with:

(a) Canada’s decision on whether the institution is an Indian Residential School;

(b) Written reasons for that decision; and

(c) A list of materials upon which that decision was made;

provided that Canada may ask the Requestor for an extension of time to complete the research.

(5) Should either the Requestor or the NAC dispute Canada’s decision to refuse to add a proposed institution, the Requestor may apply to the Appropriate Court, or the NAC may apply to the court of the province or territory where the Requestor resides for a determination.

(6) Where Canada adds an institution to Schedule “F” under Section 12.01(4), Canada may provide the Requestor with reasonable legal costs and disbursements.

2. The Fort William Sanatorium School Article 12 RFD

[16] The Fort William Sanatorium School, which operated on the grounds of the Fort William Sanatorium, is not an institution listed under Schedules “E” or “F” of the IRSSA.

[17] The Sanatorium was a community medical facility established in 1935 by the Tuberculosis Society of Northwestern Ontario to provide treatment for persons with tuberculosis.

[18] There is evidence that students at IRSs that needed to be hospitalized were transferred by Canada to the Sanatorium and schooled at the Fort William Sanatorium School. Canada’s role and relationship with the activities of the school is a matter of dispute. After discharge from the Sanatorium, the students were returned by Canada to an IRS.

[19] In February 2012, Mr. Sadowski, who is not a member of a First Nation nor a former resident of an IRS, has a MSc., and he was employed at Algoma University as an Adjunct Professor of the Department of Law and Politics. In particular, he worked at the Shingwauk Residential Schools Centre, where he was the Research and Archives Coordinator. The Centre is co-managed by the Children of Shingwauk Alumni Association and the National Residential School Survivors’ Society.

[20] While employed at the Centre, Mr. Sadowski’s job was to help IRS survivors confirm their residency at IRSs. He has helped between 700 and 1,000 claimants with respect to claims under the IRSSA.

[21] While researching IRSs at the Centre, Mr. Sadowski came across some documents about Fort William Sanatorium School, and he identified Saul Day in Fort William’s Quarterly Account as having been at the school. Mr. Sadowski contacted Mr. Day with the idea of enlisting him to make an RFD to have Fort William Sanatorium School recognized as an IRS under the IRSSA. Mr. Day agreed to act as a representative on behalf of all who had attended the Fort William Sanatorium School.

[22] In February 2012, Mr. Sadowski - without mentioning Mr. Day - wrote Aboriginal Affairs and Northern Developments Canada; i.e., Canada, and requested that the Fort William Sanatorium School be added to the list of IRSs under the IRSSA.

[23] On April 26, 2012, David Russell, a Director at Aboriginal Affairs, wrote Mr. Sadowski and advised him that the request had been refused. Canada provided the following explanation:

In conducting its research, Canada followed the research steps described in the Research Protocol attached to this letter as Attachment 1. The research performed by Canada revealed that the Proposed Institution was a hospital day school operated by the Fort William Sanatorium School Board, under the Province of Ontario. While Canada was jointly responsible for the operation of the hospital day school from at least September 1951 to July 1953, our research indicates that children attended the Proposed Institution because they were receiving health care services at the Fort William Sanatorium. The Sanatorium, while residential, was a health care facility, and was the responsibility first of a board of directors, and later the Province of Ontario. The Proposed Institution therefore does not meet the test set out above, resulting in Canada’s decision to refuse to add the Proposed Institution to the List.

[24] In light of Canada’s refusal, Mr. Sadowski, Mr. Day, and Tania Cameron, a member of the Dalles First Nation, who had had learned of Mr. Sadowski’s research and who had relatives who were at the Fort William Sanatorium School approached: (1) the Grand Council Treaty 3; (2) Nishnawbe Aski Nation; (3) the Children of Shingwauk Alumni Association; (4) National Residential Schools Survivor’s Society; and (5) the Ontario Indian Residential Schools Support Services Inc. to seek financial assistance to fund an Article 12 RFD. Their requests for assistance were declined.

[25] Notwithstanding the lack of financial support, on September 18 2012, Mr. Sadowski submitted an RFD in the form of a letter - written in the first person plural (“we are requesting”) - to Chief Justice Winkler (as he then was) asking the Ontario Superior Court to add Fort William Sanatorium School to the list of IRSs in Schedule “F” and to recognize all other Indian hospital schools as IRSs under the IRSSA.

[26] In November 2012, Canada filed its response opposing the RFD request. Canada treated the RFD as having been submitted by Mr. Sadowski. Canada, once again, took the position that Fort William Sanatorium School did not meet the criteria of an IRS under Article 12 of the IRSSA. Moreover, Canada submitted that Article 12 did not permit the Court to recognize en masse hospital schools as IRSs, and, rather, each hospital school had to be reviewed on a case-by-case basis.

[27] In January 2013, again writing in the first person plural, Mr. Sadowski wrote Chief Justice Winkler. The letter stated that: “We would like to amend our Request for Direction.” The letter contained an amended RFD, which did not mention Mr. Day or Mrs. Henry.

[28] In April 2013, Canada filed its response to the amended RFD, and Canada maintained its refusal to add the school to the list of IRSs.

[29] Between January and April 2013, Mr. Sadowski unsuccessfully attempted to obtain legal assistance to advance the RFD. In this regard, he spoke to, among others: AA at an IRSSA conference sponsored by the Faculty of Law at the University of Toronto, BB at Aboriginal Legal Services, CC, DD, EE, and FF. For a variety of reasons, nobody was prepared to accept the brief.

[30] On April 15, 2013, during a conference call convened by Brian Gover, Court Counsel, Mr. Sadowski advised that he would be seeking advance costs. Mr. Gover directed that Mr. Sadowski’s submissions on advance costs be provided by May 13, 2013.

[31] Mr. Sadowski missed the deadline, but he continued his efforts to obtain legal assistance, now focussing on a limited retainer to provide assistance in seeking advance costs. Between May and November 2013, he spoke to GG, HH, II, JJ, KK, LL, MM, and NN. For a variety of reasons, some of which I shall explain below, no one was prepared to accept the brief.

[32] In November 2013, Eric Hovius agreed to help with the Fort William Sanatorium School RFD. Mr. Hovius agreed to bring an application for advance costs, and Mr. Hovius had several communications with Mr. Gover. Mr. Gover directed Mr. Hovius to deliver the advance costs application by June 2014.

[33] In January 2014, Mr. Hovius wrote to Bryan Wigger, counsel at the Department of Justice for Canada. Mr. Wigger was refusing to deal with Mr. Hovius unless he proved that he had been retained to act on the Fort William Sanatorium School RFD.

[34] On March 3, 2014, Mr. Hovius wrote to Mr. Gover to confirm that he was acting for Fort William Sanatorium School students and that he would be bringing an application for advance costs. Mr. Hovius insisted that Mr. Sadowski was not the client for the Article 12 RFD.

[35] The motion for advance costs, however, was not brought, and almost a year went by until September 2014, when Mr. Hovius decided that he would no longer take on the brief.

[36] Once again, Mr. Sadowski resumed his efforts to find legal assistance, and between September and October 2014, he contacted OO, LL a second time, and PP. Once again, for a variety of reasons, nobody was prepared to accept the brief.

[37] On October 29, 2014, without the assistance of counsel, Mr. Sadowski delivered a further amended RFD with details of his additional research about the Fort William Sanatorium School.

[38] Over the course of the two years, from 2012 to 2014, Mr. Sadowski contacted at least 18 different lawyers seeking legal assistance, all of whom declined to assist for a variety of reasons. The main reason for the lawyers declining the brief was financial. There was financial risk and no financial gain to be achieved by this brief.

[39] For the lawyers, a contingency fee arrangement was useless to ameliorate the risk of the expense of providing the unpaid legal services needed to complete the RFD. A successful Article 12 RFD would result in adding the Fort William Sanatorium School to the IRSSA’s list of IRSs, but there is no money to be earned in obtaining a declaration other than the normal legal costs that goes with winning, which was far from a sure thing, because this RFD was obviously going to be strongly resisted by Canada. Further, even assuming the RFD was successful, there was no assurance that the lawyers would obtain individual contingency fee retainers from those Aboriginals who attended the Fort William Sanatorium School and who would pursue compensation under the IRRSA. Moreover, Mr. Sadowski and Mrs. Henry had to be told that if the RFD was unsuccessful, then there might be an adverse costs award against them, and the lawyers were not prepared to indemnify the clients for this exposure. All in all, a high risk brief with little remunerative upside.

[40] Finally, in February 2015, E. Anthony Ross, Q.C. agreed to assist with an application for advance costs. If the application for advance costs is not successful, Mr. Ross has advised that he will not continue to work on the RFD. Mr. Ross is being assisted by Katrina Marciniak. Mr. Ross, (1973 call) and Ms. Marciniak (2009 call) were prepared to accept a limited retainer brief for the advance costs motion. For the Article 12 RFD, they have filed an estimated budget of $83,852 inclusive of HST. The budget covers investigation, case analysis and strategy, case conferences, identifying and consulting with experts, discovery, pleadings, and hearing. The budget, however, is exclusive of expert reports and disbursements.

[41] On May 1, 2015, Ms. Marciniak delivered a Notice of Application for advance costs. The motion material identifies Mrs. Henry as the person bringing the RFD for the survivors of the Fort William Sanatorium School.

[42] The motion for advance costs was supported by affidavits from Mr. Sadowski and Mrs. Henry. The Notice of Application indicated that there would be an affidavit from Mr. Day, but ultimately he did not swear an affidavit.

[43] Mr. Sadowski was cross-examined on his affidavit on July 23, 2015. Mrs. Henry was not cross-examined.

[44] This is the factual background to the motion. Somebody brings a motion for an advance costs award because, without an advance costs award, Nobody will provide the legal services for an RFD to determine whether the Fort William Sanatorium School is an IRS.

[45] A bizarre and lamentable motion.

C. DISCUSSION AND ANALYSIS

1. Who is the Moving Party for the Advance Costs Award?

[46] I find as a fact that Mrs. Henry is the Somebody seeking an advance costs award. She is the person who has a personal interest in having the Fort William Sanatorium School declared an Indian Residential School.

[47] Mr. Sadowski did initiate the RFD, but it was never his RFD, and why he should be treated as if he were a busybody stirring up litigation, when he has no personal financial interest in having the Fort William Sanatorium School listed as an IRS and has spent 17 years helping claimants, totally escapes me.

[48] Mrs. Henry, who was not cross-examined, is impecunious, and she seeks access to justice. She says that she cannot obtain it without an advance costs award, which is an extra-extra extraordinary order for a court to make.

[49] I agree with Canada that Mr. Sadowski does not qualify for an advance costs award, but the issue to be determined is whether Mrs. Henry qualifies for this extraordinary award.

2. Jurisdiction to Award Costs on an Article 12 RFD

[50] Article 12.01 (6) of the IRSSA, set out above, provides that where Canada adds an institution to Schedule “F” under Article 12.01 (4), Canada may provide the Requestor with reasonable legal costs and disbursements.

[51] In Fontaine v. Canada, 2012 ONSC 3552 at para. 7, Chief Justice Winkler held that Article 12.01 (6) was not a reference to a costs regime under the rules of court of any province, but it meant that a party who succeeds on an Article 12 RFD will be reimbursed in full for his or her reasonably necessary legal costs. In this case, which concerned the designation of Stirland Lake High School/Wahbon Bay Academy and Cristal Lake High School to Schedule “F” (approximately 600 students), Chief Justice Winkler awarded the successful Article 12 RFD applicant $213,339.90 for counsel fees and disbursements plus applicable taxes.

[52] In the immediate case, however, Mrs. Henry is not requesting costs pursuant to Article 12 of the IRSSA. Rather, she is requesting costs pursuant to the Superior Court’s normal jurisdiction to award costs as an aspect of the administration of justice. Normally, the court's discretion in awarding costs arises under the authority of s. 31(1) of the Courts of Justice Act, R.S.O. 1990, c. 43 and is to be exercised by a consideration of the factors in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 990, Reg. 194. These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding and the conduct of the parties in litigation. In my opinion, although Mrs. Henry is not requesting costs pursuant to Article 12 of the IRSSA, the determination of her right to an advance costs award in the immediate case pursuant to the court’s normal jurisdiction should also consider the circumstance that the IRSSA envisions costs being paid by Canada to persons who request an Article 12 RFD.

[53] In any event, the court’s normal costs jurisdiction is available in the circumstances of a contested RFD: Fontaine v. Canada (Attorney General), 2014 ONSC 3059, and in its factum, Canada acknowledges the court’s jurisdiction to award advance costs in appropriate cases. It submits, however, that this Article 12 RFD is not an appropriate case.

3. Access to Justice and the Law about Advance Costs Awards

(a) Advance Costs Awards

[54] As it happens, the predominate purpose of both class proceedings and advance costs awards is access to justice.

[55] The Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6 achieves its access to justice goal by an entrepreneurial model that encourages class counsel to assume the risk of advancing causes of action that putative class members could not as individuals afford to litigate. The encouragement comes from allowing class counsel a contingency fee that will be based on the amount recovered for the class members as a group. In theory, the representative plaintiff, who usually has little to gain personally from pursuing a claim on behalf of a group, is liable for an adverse costs award, but, in practice, class counsel, which has far more to gain if the action is successful, will agree to indemnify the representative plaintiff for an adverse costs award.

[56] An illustration reveals the entrepreneurial model; visualize: A cartel of manufacturers conspire to fix the prices of their goods, and ten million consumers each pay $10 more than they should for the cartel’s goods. Although the class was wronged to the tune of $100 million, it would be insane for any one of those consumers to sue for their individual $10 loss, but a class counsel might well be enticed to take on the case for a representative plaintiff for a contingency fee that, subject to court approval, might be worth up $30 million assuming that the class action was certified and was successfully prosecuted or settled. With this prize to be had, entrepreneurial class counsel may be encouraged to prosecute the high-risk litigation with a contingency fee and an agreement to indemnify the representative plaintiff (although that risk can sometimes be passed on to a third party funder, who also will share in a successful outcome). When the entrepreneurial model works as designed, there is access to justice, behaviour modification and judicial economy, but access to justice is the primary goal and justification of the entrepreneurial model for class actions.

[57] The justification of the extra-extra extraordinary order of advance costs is also access to justice.

[58] The adversarial model for litigation in Ontario and across Canada uses an award of costs as a means to encourage access to justice for meritorious claims and as means to discourage unmeritorious claims. Under the adversarial model, typically, the unsuccessful litigant partially indemnifies the successful party for pursuing its successful claim or defence. An advance costs award, however, awards a party its costs in advance and before the success or failure of the litigation is determined. There must be some extraordinary circumstances aligned with access to justice and the public interest to justify awarding costs to a litigant who may ultimately fail to prove his or her claim.

[59] Given that the entitlement to costs is usually determined by reference to the outcome and there is an inherent unfairness in requiring an opponent to finance his or her opponent’s litigation, the jurisdiction to award interim costs is an extraordinary and rarely exercised jurisdiction.

[60] In very exceptional circumstances, the court has the jurisdiction to make an advance award of costs: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, affg (2005), 2005 BCCA 94, 249 D.L.R. (4th) 695 (B.C.C.A.); R. v. Caron, 2011 SCC 78; Hagwilget Indian Band v. Canada (Minister of Indian Affairs & Northern Development), 2008 FC 574; Ontario (Ministry of Natural Resources) v. Robinson, 2012 ONSC 1253; Traverse et al v. Government of Manitoba and A.G. of Canada, 2013 MBQB 150.

[61] In British Columbia (Minister of Forests) v. Okanagan Indian Band, supra, Justice LeBel (McLachlin, CJC, Justices Gonthier, Binnie, Arbour and Deschamps concurring) stated:

40. With these considerations in mind, I would identify the criteria that must be present to justify an award of interim costs in this kind of case as follows:

41. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial -- in short, the litigation would be unable to proceed if the order were not made.

42. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

43. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

44. These are necessary conditions that must be met for an award of interim costs to be available in cases of this type. The fact that they are met in a particular case is not necessarily sufficient to establish that such an award should be made; that determination is in the discretion of the court. If all three conditions are established, courts have a narrow jurisdiction to order that the impecunious party's costs be paid prospectively. Such orders should be carefully fashioned and reviewed over the course of the proceedings to ensure that concerns about access to justice are balanced against the need to encourage the reasonable and efficient conduct of litigation, which is also one of the purposes of costs awards. When making these decisions courts must also be mindful of the position of defendants. The award of interim costs must not impose an unfair burden on them. In the context of public interest litigation judges must be particularly sensitive to the position of private litigants who may, in some ways, be caught in the crossfire of disputes which, essentially, involve the relationship between the claimants and certain public authorities, or the effect of laws of general application. Within these parameters, it is a matter of the trial court's discretion to determine whether the case is such that the interests of justice would be best served by making the order.

[62] The jurisdiction to award advance costs is an extra-extra extraordinary jurisdiction. In Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs and Revenue), supra at para. 5, Justices Bastarache and LeBel (Justices Deschamps, Abella, and Rothstein concurring) state that the ratio in Okanagan applies only to those few situations where a court would be participating in an injustice against the litigant personally and against the public generally if it did not order advance costs to allow the litigant to proceed. At paras. 36, 38-42, Justices Bastarache and LeBel state:

36. Okanagan was a step forward in the jurisprudence on advance costs -- restricted until then to family, corporate and trust matters -- as it made it possible, in a public law case, to secure an advance costs order in special circumstances related to the public importance of the issues of the case (Okanagan, at para. 38). In other words, though now permissible, public interest advance costs orders are to remain special and, as a result, exceptional. These orders must be granted with caution, as a last resort, in circumstances where the need for them is clearly established. The foregoing principles could not yield any other result. If litigants raising public interest issues will not always avoid adverse costs awards at the conclusion of their trials, it can only be rarer still that they could benefit from advance costs awards. An application for advance costs may be entertained only if a litigant establishes that it is impossible to proceed with the trial and await its conclusion, and if the court is in a position to allocate the financial burden of the litigation fairly between the parties.

37. It is only a “rare and exceptional” case that is special enough to warrant an advance costs award: Okanagan, at para. 1. The standard was indeed intended to be a high one, and although no rigid test can be applied systematically to determine whether a case is “special enough”, some observations can be made. As Thackray J.A. pointed out, it was in failing to verify whether the circumstances of this case were “exceptional” enough that the trial judge committed an error in law.

38. First, the injustice that would arise if the application is not granted must relate both to the individual applicant and to the public at large. This means that a litigant whose case, however compelling it may be, is of interest only to the litigant will be denied an advance costs award. It does not mean, however, that every case of interest to the public will satisfy the test. The justice system must not become a proxy for the public inquiry process, swamped with actions launched by test plaintiffs and public interest groups. As compelling as access to justice concerns may be, they cannot justify this Court unilaterally authorizing a revolution in how litigation is conceived and conducted.

39. Second, the advance costs award must be an exceptional measure; it must be in the interests of justice that it be awarded. Therefore, the applicant must explore all other possible funding options. These include, but are not limited to, public funding options like legal aid and other programs designed to assist various groups in taking legal action. An advance costs award is neither a substitute for, nor a supplement to, these programs. An applicant must also be able to demonstrate that an attempt, albeit unsuccessful, has been made to obtain private funding through fundraising campaigns, loan applications, contingency fee agreements and any other available options. If the applicant cannot afford all costs of the litigation, but is not impecunious, the applicant must commit to making a contribution to the litigation. Finally, different kinds of costs mechanisms, like adverse costs immunity, should also be considered. In doing so, courts must be careful not to assume that a creative costs award is merited in every case; such an award is an exceptional one, to be granted in special circumstances. Courts should remain mindful of all options when they are called upon to craft appropriate orders in such circumstances. …

40. Third, no injustice can arise if the matter at issue could be settled, or the public interest could be satisfied, without an advance costs award. Again, we must stress that advance costs orders are appropriate only as a last resort. In Okanagan, the bands tried, before seeking an advance costs order, to resolve their disputes by avoiding a trial altogether. Likewise, courts should consider whether other litigation is pending and may be conducted for the same purpose, without requiring an interim order of costs. Courts should also be mindful to avoid using these orders in such a way that they encourage purely artificial litigation contrary to the public interest.

41. Finally, the granting of an advance costs order does not mean that the litigant has free rein. On the contrary, when the public purse - - or another private party -- takes on the burden of an advance costs award, the litigant must relinquish some manner of control over how the litigation proceeds. The litigant cannot spend the opposing party's money without scrutiny. The benefit of such funding does not imply that a party can, at will, multiply hours of preparation, add expert witnesses, engage in every available proceeding, or lodge every conceivable argument. A definite structure must be imposed or approved by the court itself, as it alone bears the responsibility for ensuring that the award is workable.

[63] To summarize, a party seeking an order for interim costs must demonstrate: (1) a prima facie case of sufficient merit to warrant it being pursued; (2) impecuniousity to the extent that, without assistance, the party would be deprived of the opportunity to proceed with the case; and (3) special circumstances where the award is necessary in the public interest. The three mandatory criteria for an award of interim or advance costs are: merit, impecuniosity, and public interest. The award remains discretionary, and the court will also consider whether there are alternatives to an interim costs award and whether the applicant has exhausted all realistic alternative avenues to finance its case including legal aid, pro bono representation, contingency fees, private fundraising efforts and class action certification. Interim costs awards are a last resort in circumstances where there are special circumstances and the need for an advance costs award to advance the claim or defence is clearly established. The fulfillment of the three listed conditions is necessary but not sufficient to justify an advance costs order. The court must examine all the circumstances of the case and determine not only if its importance is sufficiently “special” to support an extraordinary order of this sort, but also if there are any other factors which might militate for or against the granting of relief.

[64] Canada relies on Fontaine v. Canada (Attorney General), 2012 BCSC 313 (private boarding houses) in support of its submission that the court not award advance costs in the case at bar. In that case the requestor sought advance costs with respect to an RFD to add private boarding homes to the IRSSA. Justice Brown concluded that the Order should not be made against Canada as class action administrator because there was no indication that Canada as administrator has been either in breach of or derelict in that duty here and thus there was no basis to visit the cost of the application on Canada as administrator. Justice Brown added that Canada as defendant would likely oppose the application and the costs that were incurred could be dealt with under the regular cost rules applicable to court proceedings. Thus, Justice Brown was not asked to consider the court’s jurisdiction to award advance costs under very rare and exceptional circumstances. The case does not assist Canada in the immediate motion.

[65] Canada relies on Fontaine v. Canada (Attorney General), 2014 BCSC 2531 (Bronstein advance costs), in support of its submission that the court not award advance costs in the case at bar. In the Bronstein advance costs case, the Tsilhqot’in National Government applied for standing and for advance costs in an RFD with respect to the conduct of Stephen Bronstein and Ivon Johnny in representing class members in making claims under the IRSSA. It was alleged that Mr. Johnny had extorted money and encouraged claimants to falsify claims.

[66] Justice Brown granted the Tsilhqot’in National Government standing but not advance costs. Justice Brown held at para. 37 that the Court had the jurisdiction to award costs independent of the provisions of the IRSSA, but this was an extraordinary jurisdiction for exceptional circumstances such as where Canada was in breach of its duty under the IRSSA. Noting at paras. 41 and 42 of her Reasons for Decision that Tsilhqot’in National Government had not raised exceptional circumstances, Justice Brown concluded that it was appropriate to address the issue of costs at the hearing of the RFD and not in advance.

[67] Although I agree with Justice Brown’s decision, it begs the questions to be answered in the immediate case which is whether there are special circumstances that would make it appropriate to made an advance costs award. Once again, the case does not assist Canada in the immediate motion.

4. Merit

[68] One of the mandatory requirements of an advance costs award is that the moving party show a prima facie case of sufficient merit to warrant it being pursued. Showing merit is a higher hurdle than showing that the case is arguable or not frivolous or vexatious: Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs and Revenue), supra at para. 51.

[69] To succeed on an Article 12 RFD, the requestor must demonstrate, on a balance of probabilities, that children were placed in residence at the institution away from the family home by or under the authority of Canada for the purposes of education, and that Canada was jointly or solely responsible for the operation of the institution and care of the children resident there: Fontaine v. Canada (Attorney General), 2013 SKQB 323 at para. 75 (Timber Bay Children’s Home); Fontaine v. Canada (Attorney General), 2014 ABQB 7 (Grouard Vocational School / Moosehorn Lodge and Drumheller Vocational High School) at para. 9, affd. sub nom Canada (Attorney General) v. Alexis, 2015 ABCA 132.

[70] An Article 12 RFD requires an examination of the relationship between Canada and the institution alleged to be an IRS. In Fontaine v. Canada (Attorney General), 2014 ABQB 7 (Grouard Vocational School / Moosehorn Lodge and Drumheller Vocational High School) at para.12, affd. sub nom Canada (Attorney General) v. Alexis, 2015 ABCA 132, Justice Nation stated:

… Section 12.01(2)(b) calls for an examination of the totality of the relationship between Canada and the institution in question, and that the non-exhaustive indicators enumerated in Section 12.01(3) are neither a checklist nor individually determinative. Rather, the enumerated indicators, together with appropriate other indicia, guide an evaluation of the broader nature of the relationship in issue. The weight to be assigned to any particular indicator will necessarily be dictated by the circumstances of the institution in question.

[71] The question of whether an institution should be added to Schedule “F” of the IRSSA is a question of fact in the specific circumstances of the particular institution: Fontaine v. Canada (Attorney General), 2011 ONSC 4938 at para. 6; Fontaine v. Canada (Attorney General), 2014 ABQB 7 (Grouard Vocational School / Moosehorn Lodge and Drumheller Vocational High School) at para. 11, affd. sub nom Canada (Attorney General) v. Alexis, 2015 ABCA 132.

[72] In my opinion, based on these authorities, Mrs. Henry has got over the threshold of showing that she has a case of sufficient merit to warrant it being pursued.

[73] However, relying mainly on: Fontaine v. Canada (Attorney General), 2013 BCSC 756 (Coqualeetza); Fontaine v. Canada (Attorney General), 2014 BCSC 941 (small scale residences – interpretation), and Fontaine v. Canada (Attorney General), 2014 MBQB 209 (Teulon Residence), Canada submits that there is no merit to Mrs. Henry’s Article 12 RFD.

[74] Fontaine v. Canada (Attorney General), 2013 BCSC 756 (Coqualeetza), however, is of no assistance to Canada. The Coqualeetza case was a matter of interpreting Schedule “E” of the IRSSA, and in that case Justice Brown at para. 68 declined to undertake an Article 12 analysis, which she said would require an extensive canvassing of the relationship between Canada and the proposed IRS, an analysis that she said was not appropriate in the context of an interpretation of Schedule “E” of the IRSSA.

[75] In the Coqualeetza case, Coqualeetza IRS was listed in Schedule “E” of the IRSSA. It had been established in 1924 and operated as a school until 1939-1940, when it closed as a school and the students were relocated to St. Michaels IRS or Alberni IRS. In July 1941, what had been the school reopened as a tuberculosis sanatorium for Aboriginals of all ages, but school-aged patients attended classes and participated in educational activities during their convalescence at the sanatorium. The issue in the case was whether – as a matter of interpretation of Schedule “E” – the successor institution was within the meaning of Schedule “E”. Justice Brown concluded that the successor institution was not within the meaning of Schedule “E”, but she declined to adjudicate whether the successor institution should be added pursuant to Article 12 of the IRSSA.

[76] Fontaine v. Canada (Attorney General), 2014 BCSC 941 (small scale residences - interpretation) was not an Article 12 RFD. The issue in this case was whether as a matter of interpretation of the IRSSA the term “institution” should be interpreted to include ancillary facilities, such as board houses and group homes affiliated with an IRS. Justice Brown heard the RFD, and at para. 48 of her decision, she noted that it was not an Article 12 RFD.

[77] In Fontaine v. Canada (Attorney General), 2014 BCSC 1221 (small scale residences – Article 12), in making a direction to allow the Article 12 RFD to proceed, Justice Brown confirmed that Fontaine v. Canada (Attorney General), 2014 BCSC 941 (small scale residences - interpretation) was not an Article 12 RFD.

[78] Fontaine v. Canada (Attorney General), 2014 MBQB 209 (Teulon Residence) was both an interpretation of the IRSSA RFD and an Article 12 RFD about whether the Teulon Residence, which the Presbyterian Church opened as a boys’ residence in 1912 and a girls’ residence in 1918, was an IRS. Justice Schulman decided that it was neither. Addressing the Article 12 analysis, Justice Schulman stated at para. 40:

40. As Winkler C.J.O. noted in Fontaine v. Canada (Attorney General), 2011 ONSC 4938, 2011ONSC 4938 at para. 6, “[t]he question of whether an institution should be added to Schedule “F” turns on the facts of the specific situation under consideration.” Article 12 must be interpreted in a manner consistent with the intentions of the parties at the time the Settlement Agreement was concluded. In the Timber Bay case, the court recognized that the purpose of the Article 12 test was to “measure the degree to which Canada was responsible for the operation of an institution in which Indian children resided”: Fontaine v. Canada (Attorney General), 2013 SKQB 323 at para. 34. While I am satisfied that Canada did have some involvement in the welfare of students at Teulon, I am not convinced that this involvement rose to the level contemplated under Article 12.

[79] For present purposes, all that Fontaine v. Canada (Attorney General), 2014 MBQB 209 (Teulon Residence) demonstrates is that the factual circumstances of each institution must be evaluated to determine whether it should be added to Schedule “F”.

[80] Thus, to repeat, in the case at bar, my opinion is that Mrs. Henry has got over the threshold of showing that she has a case of sufficient merit to warrant it being pursued.

5. Impecuniosity

[81] The threshold for proof of impecuniosity is high, and the party seeking advance costs must demonstrate that it is impossible to proceed with the litigation without an order for advance costs, and the party is required to make full and transparent disclosure of its assets, ability to raise or borrow monies, ability to obtain counsel, the likelihood of a contingency fee agreement, and an estimate of the funds it requires to prosecute the litigation: Traverse et al v. Government of Manitoba and A.G. of Canada, supra at para. 41.

[82] In the case at bar, in my opinion, Mrs. Henry has met the onus of showing that she is impecunious. In my opinion, she genuinely cannot afford to pay for the Article 12 RFD, and no other realistic option exists for bringing the issues to trial.

[83] Canada, however, submits that Mrs. Henry through her surrogate, Mr. Sadowski, has not done enough to show that he [she] does not have other realistic options for bringing the issues to trial. In para. 62 of Canada’s factum, Canada states:

[The] Applicant has not demonstrated sufficient or reasonable efforts to raise funds from other reasonable and realistic sources. To the contrary, the Applicant has not availed himself of many other potentially viable sources of funding from sophisticated and politically and financially powerful Aboriginal groups whose very mandate it to provide advocacy and support to the interests of Aboriginal individuals. Other possibilities for funding may include: the Assembly of First Nations (a national advocacy organization representing 900,000 people living in 634 First Nation communities across Canada); the Chiefs of Ontario (a political forum and secretariat for collective decision-making, action and advocacy for the 133 First Nations communities located in Ontario); the Union of Ontario Indians (a political advocate for 39 member First Nations across Ontario); the Fort William First Nation (received $154M in land claim settlement in 2011).

[84] I disagree. Mrs. Henry has done enough. Through Mr. Sadowski, she tried but failed to find financial support for her RFD. For whatever reason, she cannot attract the support of others for the cause of those students from IRSs who were moved because of ill health to Fort William Sanatorium, and who while still enrolled at the residential schools continued their education at the Sanatorium.

[85] Canada ascribes this lack of support as evidence of the lack of merit of the Article 12 RFD, which rather suggests that Canada does not really believe that she could do more to raise funds because those efforts would inevitably fail. Article 12 RFDs are inherently difficult. If it was clear that an institution was an IRS, it would likely have been already listed in the IRSSA schedules. Mrs. Henry undoubtedly has a difficult case, but I do not think her case is devoid of merit, and the lack of support Mr. Sadowski was able to gather may simply reflect that nobody was prepared to take on the risk of what Chief Justice Winkler’s decision in Fontaine v. Canada, 2012 ONSC 3552 demonstrates has become very expensive litigation.

[86] It is also worth observing that it would not make much sense for an advocacy organization to commit its support to Mrs. Henry, unless she was able to retain a lawyer to act for her on a contingency fee basis, which she was remarkably unsuccessful in doing.

[87] In a problem which has become pandemic in class actions, class counsel are not much interested in small value cases. The entrepreneurial model for class actions works wonderfully well for many cases, but actions for a declaration that might help a small group are not a success story for the class action regime. Support for the individual issues part of a class action is also becoming an access to justice problem.

[88] I am not to be taken to be critical of the 18 lawyers who declined Mrs. Henry’s brief. I also am not to be taken to be critical of the entrepreneurial model chosen by the Legislature. I am only saying that class actions are only a partial solution to serious access to justice problems. The sad truth is that Mrs. Henry, despite the valiant efforts of Mr. Sadowski, cannot obtain access to justice because she is too poor to pay for it.

[89] In any event, in my opinion, Mrs. Henry has done enough to show that she is impecunious and an advance costs award is her last resort to access to justice.

6. Public Interest and Discretionary Factors

[90] Showing some merit to the litigation and showing impecuniousity are the least extraordinary factors of an advance costs award, and the most rigorous and the most important criterion for an advance costs award is that of showing that the issues transcend the individual interests of the particular litigant and are of public importance and have not been resolved in previous cases.

[91] Whether Fort William Sanatorium School is an IRS obviously has not been resolved in previous cases, but determining whether this particular institution is or is not an IRS will have no significance to other Article 12 RFDs. This follows because, as noted above, each Article 12 RFD is fact-specific.

[92] Is there then something about Mrs. Henry’s case, some extraordinary circumstances aligned with access to justice and the public interest, that would justify awarding her advance costs, although she may ultimately fail to prove her claim? Does the plight of Mrs. Henry and her individual interest in receiving compensation under the IRSSA transcend to a matter of public importance?

[93] I can begin answering these questions by noting that Mrs. Henry’s case is an aspect of what is undoubtedly the most extraordinary of class actions. Fontaine v. Canada (Attorney General) is not just a part of judicial history, it is itself a part of the history of the nation. The IRSSA is also a means to record, what is sadly, a lamentable history. Mrs. Henry has a story to tell, and it is in the public interest that she have an opportunity to tell her story.

[94] Just as important and special a circumstance is that Mrs. Henry may ultimately lose her Article 12 RFD, but if she does, she will at least have had access to justice. In my opinion, it is in the public interest that she have her day in court. If Mrs. Henry’s claim is denied, and for present purposes all that needs to be said is that success is far from assured, a Canadian court, will have listened to her story and a Canadian Court will have explained to a First Nation citizen of Canada, face-to-face, why she does not succeed under her Article 12 RFD.

[95] If the particular circumstances of Mrs. Henry are not enough of a special circumstance to connect her case to the interests of justice, then in my opinion, the failure of the class action regime in one of its most important cases to address the plight of individual claimants once the entrepreneurial part of the proceeding is spent, is a special circumstances that justifies an advance costs award.

[96] In my opinion, in the special circumstances of Mrs. Henry’s particular circumstances and in the special circumstances of an Article 12 RFD, it is in the public interest that Mrs. Henry have access to justice through an advance costs award. It is necessary to emphasize that I am focussing on the particular circumstances of Mrs. Henry, which I regard as extraordinary, and I am not suggesting that advance costs award are to be a norm of Fontaine v. Canada (Attorney General) or of the IRSSA. It is also necessary to emphasize that I am applying not changing the law about advance costs as espoused by the Supreme Court of Canada. An advance costs award remains extra-extra extraordinary and will have to be justified in each case.

[97] I conclude by noting that the admonition of the Supreme Court in Okanagan Indian Band that the court should be particularly sensitive to the position of private litigant defendants has little role to play in the immediate case where the Defendant is the supreme public authority.

D. CONCLUSION

[98] For the above reasons, I grant this motion and an Order should issue as described above.

[99] I award Mrs. Henry costs of this motion. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mrs. Henry’s submissions within 20 days of the release of these Reasons for Decision followed by Canada’s submissions within a further 20 days.

Perell, J.

Released: November 13, 2015

COURT FILE NO.: 00-CV-192059

DATE: 20151113

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: November 13, 2015