CITATION: Fontaine v. Canada (Attorney General), 2016 ONSC 4326

COURT FILE NO.: 00-CV-192059

DATE: 2016-07-05

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:

• David Schulze and Marie-Eve Dumont for M.F.

• Peter Grant for Independent Counsel

• Catherine Coughlan and Brent Thompson for the Attorney General of Canada

HEARING DATE: June 8, 2016

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION AND OVERVIEW

[1] It is not disputed that in the sacristy of the church used by the Spanish Boys’ Indian Residential School (“Spanish Boys IRS”), in Spanish, Ontario, Father B anally raped and forced M.F. to perform fellatio. M.F. applied for compensation under the Independent Assessment Process (“IAP”) of the Indian Residential Schools Settlement Agreement (“IRSSA”).

[2] Notwithstanding the uncontested proof of the sexual assaults, the IAP Adjudicator dismissed M.F.’s Application. She inferred that the sexual assaults had occurred after Spanish Boys IRS had closed. M.F. sought a review of the decision. The Review Adjudicator affirmed the Adjudicator’s decision. The Review Adjudicator held that the Adjudicator’s decision “falls within a reasonable range of outcomes and is supported by the primary facts, or by reasonable inferences.” M.F. sought a Re-Review. The grounds for the Re-Review were that the Adjudicator had made a palpable and overriding error and had improperly relied on extra-curial knowledge. The Re-Review Adjudicator dismissed the Re-Review. The Re-Review Adjudicator held that a Re-Review does not allow “for a second review of the ground that the decision of … contains a palpable and overriding error.” The Review Adjudicator corrected the Adjudicator’s misuse of extra-curial knowledge to come to a conclusion that did not depend upon extra-curial knowledge, and the Re-Review Adjudicator thus dismissed the Re-Review.

[3] Unsatisfied with the decisions of the Adjudicator, the Review Adjudicator, and the Re-Review Adjudicator, M.F. brought a Request for Direction (“RFD”) under the IRSSA. He seeks the following relief:

(a) a declaration that he is entitled to compensation for sexual abuse at the SL4 level and for consequential harm at the H4 level because the record shows that, on the balance of probabilities, he was abused while the IRS was in operation and his medical record proves the psychological harm he suffered;

(b) an order directing a different adjudicator to assess his claim in accordance with this honourable Court’s declaration in order to assess the remaining issues, including aggravating factors, loss of opportunity, and a future care plan;

(c) a direction that review of an adjudication decision in order “to determine whether it contains a palpable and overriding error” under para. III.l.ii. of Appendix D of the IRSSA must be conducted in accordance with the principles of appellate review and not based on whether the decision fell within a “range of reasonable outcomes”;

(d) a direction that when a claimant asks the Chief Adjudicator or his designate to determine whether a reviewing adjudicator’s decision “properly applied the IAP Model to the facts,” re-review includes the jurisdiction to test the initial or second adjudicator’s decisions for palpable and overriding error of fact and to correct such errors;

(e) costs on a full indemnity basis.

[4] M.F.’s RFD was supported by Independent Counsel, who are an entity under the IRSSA, who submitted that the RFD raised vitally important questions of first instance about: (a) the review process under the IRSSA; (b) Canada’s obligation to produce documents for the Adjudicator during the course of an IAP hearing; and (c) the court’s role in supervising the Review and Re-Review process under the IRSSA.

[5] In regards to the importance of the matter, Independent Counsel advised the court that at the present time, there are 80 pending Reviews and 27 Re-Reviews and there could be more Reviews as the IAP has not yet been completed for over a thousand claimants.

[6] In an interesting twist to this history of M.F.’s Application and the reviews of it, in preparing to respond to the RFD, Canada examined documents that may have been ignored at the IAP hearing by M.F., Canada’s lawyer, the Adjudicator, the Review Adjudicator, and the Re-Review Adjudicator. The contents of these documents undermined the adverse factual inference drawn by the Adjudicator, which inference was the reason that M.F.’s Application for compensation under the IAP was dismissed. Commendably, Canada drew attention to these documents as part of the RFD.

[7] The documents did indeed undermine the Adjudicator’s finding that the sexual assault occurred after the Spanish Boys IRS had closed. The documents disclosed that the sexual assault could not have occurred as inferred by the Adjudicator because Father B had left Spanish, Ontario the day after the school closed never to return. It, therefore, would be absurd and a palpable and overriding error to infer that Father B committed the offence after the school had closed because he undoubtedly committed the offence but was not in Spanish, Ontario after the school closed.

[8] However, Canada argued that there had been no obligation on it to highlight the documents to the Adjudicator and that it was only with hindsight that it could be said that the Adjudicator made an erroneous factual finding. Thus, Canada’s position on the RFD was that it had not breached the IRSSA and that the Adjudicator’s, Review Adjudicator’s and Re-Review Adjudicator’s decisions were sound.

[9] Nevertheless, Canada submitted that M.F.’s RFD was one of the very rare cases where the court had the jurisdiction to order the IAP claimant to return to the Adjudicator for a rehearing of his IAP Application as might be directed by the court. Canada submitted, therefore, that the issue of the review process for an IAP claimant was moot and that it was not necessary for the court to grant the relief requested by M.F. or to rule on the nature of the jurisdiction of Review Adjudicators and Re-Review Adjudicators, which is what M.F. seeks the court to do on his RFD. Canada submitted instead that M.F. should have a RFD rehearing as the court may direct and the court should do nothing more on this RFD.

[10] M.F. and Independent Counsel disputed that the matter was moot and asked the court to go ahead to deal with the merits of the RFD.

[11] As the discussion below will reveal, I shall determine the substantive merits of the RFD. In that regard, I agree, in part, and I disagree, in part, with the substantive submissions of M.F., Independent Counsel, and Canada.

[12] My own conclusions and my order are as follows:

(1) although Canada made a mistake in redacting Father B’s name from one of the after-the-fact examined documents, Canada did not breach the IRSSA;

(2) without the benefit of hindsight, I conclude that the Re-Review Adjudicator: (a) erred and did not apply the correct standard for a Re-Review; (b) should have found that the Adjudicator and Re-Adjudicator had failed to apply the IAP Model; and (c) should have made an IAP award to M.F.;

(3) although the court could remit M.F.’s IAP Application to the Chief Adjudicator to assign an Adjudicator to quantify M.F’s entitlement to an IAP award, the court also has the jurisdiction to quantify M.F.’s award or to direct that it be quantified by a referee of whom, a Master of this court or Court Counsel appointed under the IRSSA would be appropriate referees;

(4) in the immediate case, I shall not send the matter back to the Chief Adjudicator or appoint a referee; rather, subject to providing the parties a 30-day opportunity from the date of this decision to settle M.F.’s IAP award and his claim for costs, I shall quantify M.F.’s IAP award and I shall also determine M.F.’s claim for costs;

(5) if the parties are unable to settle the amount of the award and the amount for costs, the parties shall make submissions in writing based on: (a) the record now before the court; (b) a bill of costs with supporting documents; (c) a factum of no more than 30 pages; and (d) a book of authorities; and,

(6) subject to the parties settling the matter, M.F. shall have 60 days from the date of this decision to make his submissions followed by Canada’s submissions within a further 30 days. There shall be no reply submissions without leave.

B. FACTUAL BACKGROUND AND IAP PROCEDURAL BACKGROUND

1. The IAP under the IRSSA

[13] M.F. made a claim for compensation under the IAP of the IRSSA. IAP Applications, the nature of the procedure and hearing of them, and the review process of Adjudicators’ decisions are governed by Schedule “D” of the IRSSA, which is a 67-page manual that contains 14 appendices. The pertinent provisions of Schedule “D” are attached as Appendix “A” to these reasons.

2. M.F.’s IAP Application and the Decision of the Adjudicator

[14] Spanish Boys IRS, which was located in Spanish, Ontario, also known as St. Charles Garnier College or Garnier College, was operated by the Jesuit Fathers of Upper Canada and the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie.

[15] There was a nearby Spanish Girls IRS. For present purposes, the role of this school need not be mentioned, save to note that its part in M.F.’s history and to his claim was discussed by the various Adjudicators but its role is not relevant to the RFD.

[16] M.F. made a claim for compensation under the IRSSA. There was a hearing before the Adjudicator in January 2012. At the time of the hearing, M.F. was nearly 62 years old.

[17] M.F. is a “Non-resident Claimant” within the meaning of Article 1.01 of the IRSSA and to be eligible for compensation, he had to show that, while under the age of 21, he was permitted by an adult employee to be on the premises to take part in authorized school activities.

[18] M.F. was born in 1950, and he grew up in Spanish, Ontario. He was not a student at Spanish Boys IRS, but he would visit the school where his aunt worked as a cook. While visiting the school, M.F. met Father B, who recruited M.F. to be an altar boy. M.F. testified that the sexual assaults occurred while he was training to be an altar boy. Although he could not precisely recall, he guessed that he was an altar boy for about two years. Although he could not precisely recall, he guessed that the assaults continued for two years. There was no dispute that Father B sexually assaulted M.F. in the sacristy beside the chapel used for the Spanish Boys IRS.

[19] M.F’s evidence at the IAP hearing was that he was assaulted sometime between the ages of 8 and 12 years old; i.e., between 1958 and 1962. The evidence at the IAP hearing indicated that M.F.’s aunt and Father B. were employed at the residential school in 1957-1958, the year M.F. turned 8. However, at the hearing, there was no evidence about whether M.F.’s aunt or Father B. lived or worked at the school after June 1958, when it ceased to be a residential school.

[20] At the IAP hearing, the Adjudicator had the School Narrative for Spanish Boys IRS prepared pursuant to the IRSSA and a Person of Interest (“POI”) Report about Father B.

[21] The School Narrative under the heading “Chronological History” noted: Spanish Indian Residential School for Boys was closed June 30, 1958 (AGA-0850; AGA-0850a; AGA-0817; AGA-1039).

[22] The POI Report about Father B stated:

IAP POI Report

[Father B]

Staff Lists for the periods ending December 31, 1957 and June 30, 1958 list the staff member as living at Spanish (Boys) IRS but as having no school duties. Note that Spanish (Boys) IRS closed on June 30, 1958. (AGA-000804-0007; AGA-000850-0006)

A list of Spanish IRS employees from 1914 to 1964 indicates that the staff member had been employed at Spanish (Boys) IRS as a Priest for 4 years and a Scholastic for 3 years. (AGA-000977)

The Dictionary of Jesuit Biography notes that the staff member had been employed as a teacher at Spanish (Boys) IRS for 3 years, and that he resided in Spanish, Ontario from 1938 to 1942 as a Missionary. In 1954, he had been assigned to parish work at Spanish, which was terminated in 1958. (AGA-001041)

[23] I will return to this matter below, but it is significant to note that although the School Narrative, which was given to the Adjudicator, refers to document AGA-0817, which is a copy of Father B’s diary, and although the POI Report, which was given to the Adjudicator, refers to AGA-001041, which is an excerpt from The Dictionary of Jesuit Biography, neither Canada nor M.F. actually proffered AGA-0817 or AGA-001041 as evidence for the Adjudicator to read and these documents were never read by the Adjudicator, Review Adjudicator, or Re-Review Adjudicator. Rather, M.F. only became aware of the content of these documents as a part of his RFD now before the court.

[24] It is significant to note that had AGA-0817, which is a copy of Father B’s diary, been produced to Adjudicator, it would have contained some redactions of Father B’s name that ought not to have been made. I will discuss this matter further below.

[25] Further, although once again, it is a matter I shall discuss below, it is also significant to note that neither AGA-0817 nor AGA-001041 contradict the information in the School Narrative or in the POI about when Father B was at Spanish Boys IRS. The significant information in AGA-0817 and AGA-001041 was about when Father B was not at Spanish Boys IRS. These documents disclosed that the very next day after the school closed, Father B was on a train to Winnipeg never to return to Spanish, Ontario.

[26] The Adjudicator dismissed M.F.’s IAP Application. For present purposes, the pertinent portions of her Reasons for Decision are as follows:

REPORT OF THE DECISION MAKER

A. SUMMARY

1. Allegations:

M.F. testified that when he was a young boy, in Spanish, Ontario, he was sexually abused by a local priest, who was, at one time, employed at the Spanish Boys’ Indian Residential School.

2. Conclusions

I find that M.F. has not discharged his evidentiary burden and proven on a balance of probabilities that the acts of sexual abuse alleged are compensable under the IAP.

C. ANALYSIS

… M.F. stated that he was about 10 years of age when he would go to the Spanish Boys’ school to see his aunt and to play around the grounds. This would mean that he on the property in about 1960. He further stated that he could not be positive, but he may have been on the grounds “a couple of years earlier”, which would mean that he may have been on the school property as early as 1958.

M.F. further testified that he may have gone to visit his aunt at the school for about two years, and that he could recall that at some point, she was no longer there. He does not, however, recall the IRS closing.

M.F. testified that he was sexually abused by a priest who he named as Father XI and who was at the Spanish Boys’ school and who M.F. recalled helping as an altar boy at the chapel on the school property. ….

M.F. stated, at first, that he was an altar boy from about 1960 to 1962. …. M.F. testified that he became an altar boy sometime after he was confirmed in the Catholic Church. He thought at this point in his hearing, that he might have been about 8 years of age (1958), but he was not certain.

M.F. described being sexually abused by Father XI in the chapel storage room at the Spanish Boys’ school. ….

Research provided also showed that Spanish Boys’ IRS ceased to operate and was closed, effective June 30, 1958. M.F.’s aunt does not appear in any staff records after the December 31, 1957 report.

As for the priest, research provided showed that Father XI …. was employed at the Spanish Boys’ School from August 1931 … appears in staff lists from December 31, 1957 and June 30, 1958 as living at the school, but not having any duties. …. In 1954, he was assigned parish work at Spanish, but was terminated in 1958.

2. Findings

Acts proven

As an adjudicator, it is my duty to weigh all the evidence and decide whether the claimant has proven that it is more probable than not, that the alleged events happened. In other words, has the claimant proved, on a balance of probabilities the acts alleged occurred?

After reviewing the records and listening carefully to M.F. testimony, I am satisfied M.F.’s evidence overall was both credible and reliable. No one took any issue with M.F.’s credibility with respect to the allegations of abuse in this matter. No one doubted that the abuse he suffered occurred.

I will apply the test [under Schedule D, 1.1] to M.F.’s claim:

(a) according to M.F.’s evidence, Father XI abused him when he was about 10 years of age until he was about 12 years of age. This means the abuse took place between 1960 and 1962. Even if I take M.F.’s alternative evidence that he may have been 8 years of age, I cannot ignore the fact that the Spanish Boys’ school was closed in June 1958 and was no longer operating as an IRS. …. [T]he evidence showed that Father XI’s employment with the church ended in 1958 – it matters not that he was not at the Spanish Boys’ or Girls school conducting church services vis a vis his employment.

In addition, M.F. indicated that he took training to be an altar boy at Spanish Boys’ school chapel with the priest and must have had permission to be there. However, given the probable time when this training took place, it was likely after the school closed, and does not meet this part of the test.

(e) Here, the assaults, which took place on the premises of the former Spanish Boys’ school, need to be connected to the operation of the school. In this case, the Spanish Boys’ school was closed, very likely by the time, M.F. was an altar boy. It is my understanding that standard practice is that a boy cannot serves as an altar boy until he is confirmed in the Catholic Church. Confirmation usually takes place when a boy turns 8 years of age. If M.F. was confirmed at age 8 (May, 1958), then he was confirmed in the year the Spanish Boys’ school closed that June. It is highly unlikely that in the time between his birthday and the time the school closed, he was able to be confirmed and trained to be an altar boy.

Since the model requires that in order for me to find alleged acts compensable, I must be satisfied, on a balance of probabilities, that the acts alleged are compensable. Unfortunately, in this case, I am unable to make such a finding in light of the test outlined above. Therefore, this claim is denied.

[27] For the purposes of this RFD, the source of the Adjudicator’s understanding about the process to become an altar boy requires some explanation because there was no evidence on the topic proffered during the IAP hearing. Rather, as revealed by the Adjudicator’s questioning during the hearing, her understanding came about from her extra-curial knowledge of the practice of Catholicism. Excerpts from the transcript from the hearing reveal the source of this extra-curial knowledge, as follows:

THE ADJUDICATOR: In the time that you're being an altar boy, is this also during the time that your aunt is working in the kitchen?

M.F.: Yeah, yeah.

THE ADJUDICATOR: And how old do you have to be to become an altar boy?

M.F.: I'm not sure how old, I guess you could be eight, nine.

THE ADJUDICATOR: Do you have to have been confirmed?

M.F.: Yeah, I was confirmed. I don't know whether you've got to be confirmed to be an altar boy, but I was confirmed, yeah.

THE ADJUDICATOR: And how old were you when you were confirmed?

M.F.: I'm not sure. I know that I had a picture of -- I was going to bring it in –

THE ADJUDICATOR: I think you're eight, you're confirmed when you're eight.

THE ADJUDICATOR: It's my understanding you're confirmed when you're eight years old.

M.F.: Yeah, that's possible, I -- I couldn't remember though.

THE ADJUDICATOR: Because you have to be baptized and you have to do your first --

M.F.: Communion.

THE ADJUDICATOR: -- first communion when you're -- or maybe that's when you're eight, your first communion. Do you know?

M.F.’s LAWYER: Grade 1.

THE ADJUDICATOR: Grade 1 is --

M.F.’s LAWYER: -- oh no, no, grade 2.

THE ADJUDICATOR: Grade 2 is your first communion, that's right. I'm just trying to think of my nieces because they're Catholic and they're going through this right now.

M.F.: Oh yeah?

THE ADJUDICATOR: So, yeah, they -- and the one is grade 2, she's getting her first communion this year, supposedly, I don't know. And then confirmation comes after communion --

M.F.: M'hmm.

THE ADJUDICATOR: -- your first communion.

M.F.: Oh yeah.

THE ADJUDICATOR: Right? So I think you're a little older than eight when you're confirmed. Like, -- nine or 10.

M.F.: I'm not sure

3. M.F.’s Review Application and the Decision of the Review Adjudicator

[28] M.F. sought a review of the Adjudicator’s Decision. The Review Adjudicator upheld the Adjudicator’s Decision. For present purposes the pertinent provisions of the Review Adjudicator’s Review Decision are as follows:

REVIEW DECISION

BACKGROUND AND ADJUDICATOR’S DECISION

2. Adjudicator's Conclusions:

There were no concerns as to the Claimant's credibility or reliability.

The Adjudicator concluded that the claim had not been proven within the IAP, as the assaults probably took place after the Spanish Residential Boys' School had closed, in June 1958.

JURISDICTION

… The IAP at page 14 sets out the basis for review by a Claimant in both the standard and complex issues tracks, and allows the Claimant to request a review to determine, (1) whether the Adjudicator properly applied the IAP Model, or (2) whether the decision contains a palpable and overriding error. …. I infer from the Claimant's arguments concerning the testimony that the Claimant is seeking a review on the ground that the Decision contains a palpable and overriding error. I will address the Claimant's Request for Review on the basis of whether the decision contains a palpable and overriding error.

STANDARD OF REVIEW

The leading decision on what constitutes a palpable and overriding error, and how it is applied to findings or inferences of fact, is the 2002 decision of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, which held that an appellate court should not interfere with the findings of fact reached by a trial judge, and only where a palpable and overriding error exists on the record, should a finding of fact be overturned.

The 2008 Supreme Court of Canada decision of Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, provides further guidance as to the role of a reviewing adjudicator, and provides that findings of fact should not be disturbed if:

1. The reasoning path of the original Adjudicator is clear;

2. The outcome falls within a reasonable range of outcomes.

ANALYSIS

Did the Adjudicator commit a palpable and overriding error in finding that the Claimant did not satisfy the tests set out on pages 2, 31, and 32 of the IAP Model?

The difficulty in this case, and ultimately with the Decision, is that the issues were not clearly delineated and articulated. As such, applying the evidence, and arguing whether or not that evidence satisfied, on a balance of probabilities, the various tests set out in the IAP, became problematic. This case presented 2 overall issues:

1. The timing of the abuse and whether or not it occurred while the Spanish Residential Boys' School was in operation; that is, an issue of jurisdiction; and alternatively,

2. Whether the jurisdiction issue could be overcome by linking the abuse to the operation of a second and separate IRS, even though the assault did not occur on the premises of the second IRS.

With reference to the tests set out on pages 2, 31 and 32 of the IAP, the Adjudicator concludes on page 7 of her Decision as follows:

Since the model requires that in order for me to find alleged acts compensable, I must be satisfied on a balance of probabilities, that the acts alleged are compensable. Unfortunately, in this case I am unable to make such a finding in light of the test outlined above.

This awkward circular statement is confounding. Nonetheless, it is apparent that the Adjudicator concluded, after analyzing the Claimant's testimony in conjunction with the official school records, that the Claimant's abuse did not fit the criteria for compensable claims, as set out at pages 2, 31, and 32 of the Model.

The Adjudicator's findings are found on pages 6 and 7 of her Decision. The first finding of the Adjudicator is that the abuse probably occurred after the Spanish Residential Boys' School had closed, which is evidenced by the documentation showing it closing on June 30, 1958. Although not succinctly stated, this closing date is significant as the Claimant testified that:

• his birth date is May 12, 1950;

• he "took up altar boy'' at Gamier College (a variant name of Spanish Residential Boys' School);

• he was an altar boy "for a couple of years-- around 1960-1962"

• he could have been abused as young as eight years old;

• it takes "maybe about a month to be an altar boy, couple of weeks;" and

• he was abused after he became an altar boy.

Based upon these facts, the Adjudicator concluded that it was not probable that the abuse occurred while the Spanish Residential Boys' School was in operation. Since the IAP requires that abuse arise from or be connected to the operation of an IRS, this claim cannot succeed on the above facts. Quite simply, the Adjudicator had no jurisdiction to award compensation, as she reasonably inferred and found, that the abuse took place after the Claimant turned eight years old (May 12, 1958), and therefore after the Spanish Residential Boys' School closed on June 30, 1958.

In applying the test from pages 31 and 32 of the IAP, I agree with the Adjudicator that the Claimant has not met the criteria. First, the official records show that the perpetrator had been assigned to parish work at Spanish, which employment was terminated in 1958. This date coincides with the closing of Spanish Residential Boys' School and predates the proven abuse. Therefore, the perpetrator was not an employee of either IRS, and part (a) of this test fails.

When one untangles the twisted approach taken in this case, to fit the facts as found into the tests required of the Model, it becomes apparent that the Adjudicator had sufficient grounds to dismiss the Claim.

The Claimant takes issue with the reasoning path of the Adjudicator and postulates other potential outcomes, if one considers other pieces of evidence. However, as previously noted, it is not the role of a reviewing Adjudicator to second-guess the weight to be assigned to the various items of evidence.

CONCLUSION

I am unable to find that the Adjudicator committed a palpable and overriding error which would entitle the Claimant to a successful review. The Adjudicator's decision is based upon the testimony of the Claimant (which gives him the benefit of doubt as to his age when abused), as well as official evidentiary records. This is the evidence which she has weighed in making her decision. While the reasoning path may not be readily apparent I find that the Decision falls within a reasonable range of outcomes and is supported by the primary facts, or by reasonable inferences.

Contrary to the Claimant's assertion that he "clearly meets the test that the assault is connected to the operation of the school," I agree with the Adjudicator that this is not the case.

While the conclusion will be disappointing to the Claimant, I simply remind that the IAP was negotiated by all parties and it stipulates the boundaries which give rise to liability against the church and government entities who operated residential schools. Adjudicators must do justice to all parties of the settlement agreement by remaining within those boundaries, even when the outcome is harsh.

I am unable to find an error that is plainly seen and so significant as to vitiate the Adjudicator's Decision. As I have found no palpable and overriding error, the Decision will stand and the Review is dismissed.

4. M.F.’s Re-Review Application and the Decision of the Re-Review Adjudicator

[29] M.F. sought a Re-Review. The Re-Review Adjudicator upheld the Adjudicator’s Decision and the Review Adjudicator’s Decision. For present purposes the pertinent provisions of the Re-Review Adjudicator’s Re- Review Decision are as follows:

RE-REVIEW DECISION

Ground for review

15. On an application for a second review, the only ground available to challenge the decision is that of a failure by the Review Adjudicator to properly apply the provisions of the IAP Model to the facts as found by the Adjudicator. This is set out at page 14 of the Model (1)(i):

For cases within the Standard or Complex track, any party may ask the Chief Adjudicator or designate to determine whether the Adjudicator’s or reviewing Adjudicator’s decision properly applied the IAP Model to the facts as found by the Adjudicator, and if not, to correct the decision, and the Chief Adjudicator or designate may do so.

16. The standard of review on this ground is akin to the correctness standard applied by the courts. Within this standard, I am required to give complete deference to an original Adjudicator’s findings of fact. I must then be satisfied that the rules or principles found in the IAP Model have been correctly applied by the Reviewing Adjudicator to those findings of fact. No deference is given to an Adjudicator when considering whether there has been correct application of the Model.

17. The IAP Model does not permit an appeal or reconsideration on any other ground. There is no provision, in particular, for a second review of the ground that the decision of either the Initial Adjudicator or Review Adjudicator contains a palpable and overriding error.

First issue: Did the Initial Adjudicator fail to apply the correct standard of proof in assessing the evidence, and did the Review Adjudicator err in finding the decision in this respect was within a range of reasonable outcomes and supported by the primary facts?

22. As the Claimant correctly notes, the standard of proof to which a Claimant is held is proof on a balance of probabilities. It would be insufficient, for example, for the Claimant to prove that it was possible that the alleged assaults occurred while the Boys school was in operation, that being prior to June 30, 1958. The required proof was that it was more likely than not, or more probable, that the abuse occurred prior to June 30, 1958. [emphasis in the original]

23. It is apparent that the Adjudicator determined that the Claimant’s testimony that he “may” have been on the grounds a couple of years earlier did not establish a probability, but rather a possibility that he was there at the earlier time. As the Claimant himself notes in this application for a second review, the Adjudicator concluded that “it was likely” that the abuse occurred later. This language is clearly language related to the “balance of probabilities” test. This was the correct standard to apply, and no misapplication of the IAP Model occurred in this regard.

24. The Claimant is disguising a question of whether the Initial Adjudicator erred in her conclusion, by phrasing it in the context of a misapplication of the model. In fact, this is not an issue of a misapplication of the IAP Model, but rather a contention of an error made by the Adjudicator in her apprehension of the facts. Clearly the Claimant disagrees with the Adjudicator’s finding that it is not proven that the abuse occurred after the Boys school closed. However, as already noted, a Claimant may have a decision reviewed on that ground (that the Adjudicator erred) only once. The IAP Model does not permit the Claimant to seek a second review on the basis that a palpable and overriding error was made, whether made by the Initial Adjudicator or the Review Adjudicator.

25. Connected to this issue, the Claimant further alleges in a general way that the Review Adjudicator erred in finding that the Initial Adjudicator’s decision fell “within a range of reasonable outcomes and is supported by the primary facts”. The argument provides no detail as to how the nature of any error could constitute a misapplication of the IAP Model, but it can be inferred that the Claimant is alleging that if it were found that the Initial Adjudicator misapplied the IAP Model in her application of the proper standard of proof, the Review Adjudicator then also misapplied the Model when she confirmed the Initial Decision as being reasonable.

26. Given my finding above, this argument clearly must fail. There is no basis upon which to find that the review Adjudicator applied an incorrect standard of proof, or that she failed to recognize an incorrect standard of proof by the Initial Adjudicator.

27. I add that the actual allegation by the Claimant suggests that the Review Adjudicator “erred”. I reiterate that I have no authority to review the Review Adjudicator’s decision on this ground.

28. Accordingly, this portion of the request for a second review cannot succeed, as the Initial Adjudicator has not been shown to have applied an incorrect standard of proof when she determined that “it was likely” that the Claimant’s abuse occurred after the date the Boys school closed. There was no misapplication of the IAP Model by the Reviewing Adjudicator in the course of her assessment as to whether the Initial Adjudicator erred in this regard.

Second issue: Did the Initial Adjudicator fail to consider an inference supported by the evidence, and did the Review Adjudicator err in finding the decision in this respect was supported by reasonable inferences?

29. The Claimant argues that the Initial Adjudicator erred when she failed to consider an inference supported by the evidence. The Claimant had testified that he was invited onto the premises by his aunt and abused by the priest. Since there was no evidence that the aunt and the priest were on the premises after the dates of their respective employments, the Initial Adjudicator should have inferred that the Claimant was abused while the school was still in operation. Connected to this issue, the Claimant alleges that the Review Adjudicator erred in finding that the Initial Adjudicator’s decision was supported by reasonable inferences.

30. This issue deals with the role of an adjudicator to assess evidence. The Claimant himself correctly identifies this argument as one alleging a palpable and overriding error of the Initial Adjudicator. The Review Adjudicator has already assessed the Initial Adjudicator’s findings of fact. I have no authority to conduct a second of the Initial Adjudicator’s decision on this ground.

31. In terms of any error made by the Review Adjudicator in this context, the question of any misapplication by the Review Adjudicator is pre-determined by a finding that there was no misapplication found to occur in the first decision. In fact, the Review Adjudicator’s role was to make this very determination or whether the Initial Adjudicator’s decision was supported by the facts. I find no basis upon which to find that she misapplied the Model in the course of her review.

Third issue: Did the Initial Adjudicator make errors regarding her extra-curial knowledge, and did the Review Adjudicator err in finding the decision in this respect was within a range of reasonable outcomes and supported by the facts or by reasonable inferences?

32. The Claimant argues that the Initial Adjudicator made two errors: … (b) She relied on her own notions of the age at which a Roman Catholic boy may become an altar boy, to conclude it could not have been before the age of eight.

33. Above I have set out the relevant portion of Appendix X of the IAP Model, regarding the approach to be used by an adjudicator regarding the use of personal knowledge, and in particular the restriction from relying upon such knowledge as an independent basis for a conclusion of fact. In the face of this restriction, and notwithstanding that the Claimant phrased this issue as an “error”, in fact the contention raises the possibility of a misapplication of the IAP Model. As this issue was raised in the first application for review, but was not directly addressed by the Review Adjudicator, it is appropriate that I consider it in this second review.

34. The Claimant argues that the age at which a Roman Catholic boy could become an altar boy is neither obvious nor widely accepted, yet the Adjudicator decided that the probable time when the Claimant’s altar boy training took place was after the Boys school was closed. The suggestion by the Claimant is that this portion of the Decision was based upon the Adjudicator’s own erroneous assumptions as opposed to proven facts.

35. The IAP Model is clear on this point. As already noted above, Appendix X restricts adjudicators from relying on personal information as an independent basis for their conclusions of fact.

36. In a legal context, the use of extra-curial knowledge is similar to the taking of “judicial notice”. The law of evidence allows a fact to be introduced into evidence, if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. This restriction is well founded. While a witness’s evidence is given under oath, and is subject to questioning by the adjudicator to test its veracity, the application in a decision of personal knowledge of an adjudicator that is not evidence that has been proved by evidence under oath, and has not been they tested by cross-examination. In the courts, judicial notice can occur only for obvious facts that are easily accepted (such as which day of the week corresponded to a particular calendar date).

37. Even if there were no restriction at all in the IAP Model about the use of personal knowledge of an adjudicator, the question as to the age at which a Catholic boy is confirmed to be a fact that is not at all obvious. A rudimentary online search of this question demonstrates as much, and I learn that the “Code of Canon Law” states:

The sacrament of confirmation is to be conferred on the faithful at about the age of discretion, unless the episcopal conference has decided on a different age; or there is a danger of death; or, in the judgment of the minister, a grave reason suggests otherwise. (CIC 891)

My search further discovered that:

Following recognition by the Holy See, the USCCB has decreed that the age for conferring the sacrament of confirmation in the Latin rite dioceses of the United States will be between "the age of discretion [‘considered to be about age seven’] and about sixteen years of age."

48. At face value therefore, the use of the Initial Adjudicator of her own knowledge was ill-advised.

49. Returning to the matter at hand, I consider the words “as an independent basis” in Appendix X of the IAP model to be an important qualifier for the purposes of this portion of the review request. These words indicate that an adjudicator may not make conclusions of fact that are based entirely upon the use of their own personal knowledge. In this case the critical conclusion of fact in question is whether the Boys school was closed prior to the abuse occurring. The issue therefore is whether that finding of the Initial Adjudicator was based independently upon her own knowledge. If so, a misapplication of the IAP Model occurred, requiring me to correct the decision.

50. As a foundational matter, I note that this Review Decision (as did the Initial Decision) refers to and applies the correct standard of proof (one of a balance of probabilities). Additionally, it bears repeating that the burden of proof lay with the Claimant to prove that it was probable that the abuse occurred prior to June 30, 1958.

51. I further note that the “facts” listed by the Review Adjudicator as having been relied upon by the Initial Adjudicator do not include her own personal knowledge regarding the age that altar boys could begin their training.

52. These factors indicate that the Adjudicator’s personal knowledge was not the independent basis for the Adjudicator’s conclusion that the Boys school was closed prior to the abuse occurring. The Review Adjudicator confirmed that an appropriate determination of this issue was made on the basis of specific testimony of the Claimant, coupled with documentary evidence. I add that Appendix X permits an Adjudicator to base findings of fact upon Canada’s document collection (which in this respect is research about the named priest, including the dates of his employment at the Boys school), and I note that the document is clearly and properly referenced and cited in the Initial Decision (on page 4). This finding by the Review Adjudicator seems to be characterized as a deferral to the finding of fact made by the Initial Adjudicator without reference to her “personal understanding”, but given my characterization of this issue as being one of a possible misapplication of the Model, I consider it more accurate to say this portion of the Review Decision is a correction of the Initial Adjudicator’s decision. I find that this “corrected” portion of the Review Decision properly considers the evidence itself with no regard to the Initial Adjudicator’s personal knowledge. It arrives ultimately at the same conclusion found in the Initial Decision that it was not probable that that the abuse occurred while the Boys school was in operation.

53. I find no basis upon which this portion of the Review Decision has misapplied the IAP Model, as the conclusion drawn does not rely upon the Initial Adjudicator’s personal knowledge in any way, let alone as an independent basis.

Conclusion

55. None of the issues raised by the Claimant demonstrate a misapplication of the IAP Model by the Reviewing Adjudicator to the facts as found by the Initial Adjudicator.

56. The Initial Decision confirmed that a compensable claim had not been made out as pertaining to the Spanish (Boys) Indian Residential School. The Review Decision further confirmed that a compensable claim had not been made out as pertaining to the Spanish (Girls) Indian Residential School. Those outcomes shall stand.

5. M.F.’s RFD

[30] Dissatisfied with the decisions of the Adjudicator, the Review Adjudicator, and the Re-Review Adjudicator, M.F. brought the RFD now before the court.

[31] M.F. delivered his written submissions and in the process of preparing its responding submissions, as noted above, Canada examined AGA-0817 and AGA-001041, the two documents that had passed by the attention of the Adjudicator, the Review Adjudicator, and the Re-Review Adjudicator. Commendably, Canada disclosed these documents to M.F. and to the court.

[32] As noted in the introduction to these Reasons for Decision, in light of the information in AGA-0817 and AGA-001041, Canada’s position was that there should be a rehearing of M.F.’s IAP Application subject to the court’s directions, which directions might obviate the necessity of M.F. repeating his evidence. Canada submitted that should this rehearing be ordered, then the balance of the RFD was moot.

C. DISCUSSION AND ANALYSIS

Introduction

[33] The RFD raises five issues; namely:

(1) What is the court’s jurisdiction on a RFD?

(2) Is the RFD moot?

(3) Did Canada breach the IRSSA?

(4) Did the Re-Review Adjudicator fail to apply the IAP Model in his formulation and application of the proper test for an IAP Re-Review?

(5) What relief should the court grant on this RFD?

1. What is the Court’s Jurisdiction on a RFD?

[34] The court has four sources of jurisdiction over the performance of the IRSSA including the IAP. See Fontaine v. Canada (Attorney General), 2014 ONSC 283. First, there is the court’s jurisdiction over the administration of a class action settlement. Second, there is the court’s plenary jurisdiction from s. 12 of the Class Proceedings Act, 1992. Third, there is the court’s jurisdiction derived from the IRSSA, which includes its jurisdiction to interpret and enforce contracts and its own orders, including its approval and implementation orders of the IRSSA. Fourth, the court has a curial review jurisdiction.

[35] The first source of jurisdiction over the performance of the IAP is the court’s power over the administration of class action settlements. The court’s inherent jurisdiction, the applicable class proceedings law, and the approval and implementation order provide the court with the power to make orders and impose such terms as necessary to ensure that the conduct of the IAP, which implements the settlement, is fair and expeditious: Fontaine v. Canada (Attorney General), 2013 BCSC 1955 at para. 21.

[36] The court has an ongoing obligation to oversee the implementation of the settlement and to ensure that the interests of the class members are protected. The supervisory jurisdiction of the court is to be exercised to ensure that claimants obtain the intended benefits of the IRSSA and to ensure that the integrity of the implementation and administration of the agreement and related processes are maintained. Where there are vulnerable claimants, the court's supervisory jurisdiction will permit the court to fashion such terms as are necessary to protect the interests of that group. See: Baxter v. Canada (Attorney General) (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 (S.C.J.) at para. 12; Fontaine v. Canada (Attorney General), 2006 YKSC 63 at para. 54; Fontaine v. Attorney General (Canada), 2012 BCSC 839 at para. 120; Fontaine v. Attorney General (Canada), 2012 BCSC 1671 at para. 50.

[37] There are, however, limits to the court’s administrative jurisdiction. After the settlement has been approved, the court’s administrative and implementation jurisdiction does not include power to vary or amend the settlement reached by the parties nor to impose burdens on the defendant that the defendant did not agree to assume: Lavier v. MyTravel Canada Holidays Inc., 2011 ONSC 3149; Fontaine v. Canada (Attorney General), 2014 ONSC 283.

[38] The second source of jurisdiction over the performance of the IAP is the plenary jurisdiction provided by s. 12 of the Class Proceedings Act, 1992 and comparable provisions in the class action statutes from across the country. Section 12 states:

12. The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

[39] The court has broad powers under s. 12 of the Class Proceedings Act, 1992 to ensure that a class action proceeds in both an efficient and fair manner: Fantl v. Transamerica Life Canada 2009 ONCA 377; Fontaine v. Canada (Attorney General), 2014 ONSC 283.

[40] The third source of jurisdiction over the performance of the IAP is the authority derived from the IRSSA, the approval order, and the court’s implementation order, which included, as Schedule "A," a Court Administration Protocol. Under the approval orders, the courts are authorized “to issue such orders as are necessary to implement and enforce the provisions of the Agreement and this [approval] judgment.”

[41] The fourth source of jurisdiction is a general curial jurisdiction. In Fontaine v. Duboff, Edwards Haight & Schacter, 2012 ONCA 471, the Court of Appeal held that the decisions made pursuant to the IRSSA are not amenable to appeal or to judicial review but are subject to what the court described as a curial review jurisdiction.

[42] The facts of Fontaine v. Duboff, Edwards Haight & Schacter were as follows. The Duboff law firm represented IAP claimants. Pursuant to the IRSSA, an adjudicator reviewed and reduced the law firm’s fees. The law firm appealed the adjudicator’s decision to the Chief Adjudicator, who upheld the original decision. The law firm and the Chief Adjudicator then jointly brought a RFD to Chief Justice Winkler in his capacity as a Supervising Judge under the IRSSA. Chief Justice Winkler ruled that there was no right of appeal from the Chief Adjudicator’s decision and no right to seek judicial review. He noted that the fee review process was part of the IRSSA and that the agreement did not provide for further appeals. As for judicial review, the Chief Justice explained that the adjudicator and the Chief Adjudicator were acting pursuant to the IRSSA and they were not exercising a statutory power of decision subject to judicial review.

[43] The Court of Appeal affirmed Chief Justice Winkler’s decision. Justice Rouleau, writing for the Court explained at paras. 52-53, 55-57 that although judicial review was not available, there were, nevertheless, means to review the decisions of the Chief Adjudicator. He stated:

52. … The terms of the [IRSSA] and the implementation orders set out the process for reviewing decisions of the IAP Adjudicators. Recourse to the courts is only available if it is provided for in the [IRSSA] or the implementation orders.

53. …. In the perhaps unlikely event that the final decision of the Chief Adjudicator reflects a failure to consider the terms of the [IRSSA] and implementation orders, including the factors set out in para.18 of the implementation orders, then, in my view, the parties to the [IRSSA] intended that there be some judicial recourse. … As I will go on to explain, the right to seek judicial recourse is limited to very exceptional circumstances.

54. …. The parties provided for an ongoing right to seek the assistance of the courts to require compliance with the terms of the implementation orders. As noted, the implementation orders provide, at para. 23:

[T]he Courts shall supervise the implementation of the Agreement and this order and, without limiting the generality of the foregoing, may issue such further and ancillary orders, from time to time, as are necessary to implement and enforce the provisions of the Agreement, the judgment dated December 15, 2006 and this order.

56. The [Court Administration Protocol] specifies that recourse to the courts may be obtained by way of a Request for Direction that is to be brought to one of the two Administrative Judges, as designated by the courts.

57. Thus, in the very limited circumstances where the final decision of the Chief Adjudicator reflects a failure to comply with the terms of the [IRSSA] or the implementation orders, the aggrieved party may apply to the Administrative Judges for directions. …. By providing for recourse to an Administrative Judge in these limited circumstances, the parties will be able to ensure that the bargain to which they consented is respected.

[44] Thus, in Fontaine v. Duboff, Edwards Haight & Schacter, Justice Rouleau confirmed that where there is failure by the Chief Adjudicator to comply with the terms of the IRSSA or the implementation orders, the aggrieved party may apply to the court by a RFD to ensure that the terms of the IRSSA are respected.

[45] Finally, with respect to the court’s jurisdiction in determining a RFD, it should be noted that included with the sources of jurisdiction over the performance of the IAP is the court’s normal jurisdiction under the law of contract and the law of civil procedure to interpret documents and to enforce contracts and court orders. The IRSSA contains two principles of construction and interpretation. Article 1.04 states that the contra proferentem rule does not apply, and Article 18.06 provides that the Settlement Agreement is the entire agreement between the parties. These articles provide as follows:

1.04 No Contra Proferentem

The parties acknowledge that they have reviewed and participated in settling the terms of this Agreement and they agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting parties is not applicable in interpreting this Agreement.

18.06 Entire Agreement

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and cancels and supersedes any prior or other understandings and agreements between the Parties with respect thereto. There are no representations, warranties, terms, conditions, undertakings, covenants or collateral agreements, express, implied or statutory between the Parties with respect to the subject matter hereof other than as expressly set forth or referred to in this Agreement.

[46] In Fontaine v. The Attorney General of Canada, 2013 ONSC 684, Justice Goudge discussed the principles of interpretation applicable to the Settlement Agreement. He stated at para. 68:

The principles of interpretation applicable to the Settlement Agreement are straightforward. The text of the agreement must be read as a whole. The plain meaning of the words used will be important as will the context provided by the circumstances existing at the time the Settlement Agreement was created. A consideration of both is necessary to reach a proper conclusion about the meaning of the contested provisions.

2. Is the RFD Moot?

[47] It is debatable whether this particular RFD, or for that matter, any RFD about how the IRSSA should be implemented, can be regarded as moot when there is genuine uncertainty about how the Settlement Agreement should be implemented. In the immediate case, it is particularly doubtful that M.F.’s RFD is moot simply because of Canada’s concession that there should be a rehearing of M.F’s IAP Application, which Canada describes as a re-opening of M.F.’s claim.

[48] Notwithstanding that the mootness point is debatable, I shall assume that the immediate RFD is moot, and I shall move on to consider whether notwithstanding its mootness, it is in the interests of justice that the court decide the RFD, which indeed is my conclusion.

[49] The general rule of mootness is that courts will not decide hypothetical or academic questions and will decline to hear a case where the outcome has no practical effect: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. There are, however, exceptions to the mootness rule, and the court has a jurisdiction to hear a moot proceeding in the interests of justice: Borowski v. Canada (Attorney General), supra.

[50] Where there is no live dispute between the parties but where there is the prospect that the contentious legal issue that prompted the proceedings will repeat itself but remain unresolved and evasive of review, then the court may hear the matter notwithstanding its mootness. In circumstances where the court is in a position to make a fully informed decision and it is strongly in the public interest for the court to express an opinion on a legal issue that is uncertain but likely to recur, a court may decide to hear a case that is moot: Borowski v. Canada (Attorney General), supra; New Brunswick (Minister of Health and Community Services v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46.

[51] While no single factor is dispositive, important factors that govern the court’s discretion to hear a moot matter are: (1) whether, despite the absence of a live controversy, the matter will be fully argued and the court will be able to make a fully informed decision; (2) whether the influence of the judgment on the disputed issue will have practical value in other cases; (3) whether the issue in the case is a matter of public importance of which a resolution would be in the public interest; and (4) whether, the court’s activism in deciding the issue is appropriate having regard to its role and the role of the other branches of government: Borowski v. Canada (Attorney General), supra; Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.).

[52] In my opinion, it is strongly in the interests of justice for the court to determine several points of first instance about the implementation of the IAP and in particular whether the Review Adjudicator and the Re-Review Adjudicator have properly interpreted the review provisions of Schedule D, which specifies the nature of the IAP for abuse claims. There is also a significant issue about the court’s jurisdiction to fashion remedies when the adjudicative process under the IRSSA has produced a patent miscarriage of justice.

[53] Accordingly, I have decided to consider the merits of M.F.’s RFD.

3. Did Canada Breach the IRSSA?

[54] As should appear from the description above about the background to this RFD, the issue of whether Canada breached the IRSSA arose in an odd after-the-fact way because M.F.’s RFD did not make it an issue and the allegation that there had been a breach emerged in the course of the RFD as a newly discovered fact.

[55] M.F. alleges two particulars of breach associated with Appendix VII (Government Document Disclosure) of Schedule “D” of the IRSSA; namely: (1) Canada’s failure to give to the Adjudicator documents AGA-0817 and AGA-001041, which were “documents about the person(s) named as abusers, including the persons’ jobs at the residential school, the dates that worked or were there, …”; and (2) the redaction (blacked out) of Father B’s name in some references in document AGA-0817 which is a copy of Father B’s diary.

[56] The crux of the first alleged breach is the failure “to give documents” AGA-0817 and AGA-001041 to the Adjudicator who assessed M.F.’s IAP claim.

[57] In determining whether Canada breached this obligation to give documents, it needs to be noted that: (a) Canada had collected the documents as part of a massive undertaking to collect documents and prepare narratives and POI for all the Indian Residential Schools; (b) Canada referred to the documents in the School Narrative and POI; (c) Canada identified the documents as being part of Canada’s collection of documents; (d) Canada accurately reported what the documents had to say about when Spanish Boys IRS had closed and about the dates when Father B was at the school but without reporting when he was not at the school; (e) M.F. could have himself obtained copies of documents AGA-0817 and AGA-001041 and ensured that the Adjudicator had actual and not just constructive possession of them, but he did not do so; (f) the documents were identified and available; and (g) there was nothing stopping the Adjudicator from examining the documents, from which in accordance with Appendix X of Schedule “D”, she was expected to inform herself in order to make findings of fact or credibility.

[58] These being the background circumstances, in my opinion, Canada did not breach its obligation “to give the documents” to the Adjudicator. All but physical as opposed to constructive possession of the documents was given to the Adjudicator, who could have read the documents that were available to her.

[59] The crux of the second alleged breach is that Canada redacted Father B’s name in some references in document AGA-0817 which is a copy of Father B’s diary. Now, it is true that the Adjudicator should be given unredacted versions of the collected documents, and it is also true that if a claimant asks for a document, he or she should receive it with redactions that do not include redactions of the names of perpetrators of abuse, but in the circumstances of the immediate case where the Adjudicator did not read the documents and where M.F. did not request them until the RFD, it is somewhat surreal to submit that Canada’s redactions in the immediate case breached the IRSSA agreement.

[60] In the circumstances of the immediate case, I conclude that Canada did not breach the IRSSA.

4. Did the Re-Review Adjudicator Apply the Proper Test for an IAP Re-Review

[61] With the benefit of the information provided by the after-the-fact examination of document AGA-0817, which is a copy of Father B’s diary, and document AGA-001041, which is an excerpt from The Dictionary of Jesuit Biography, the Adjudicator’s conclusion that M.F. had not proven on the balance of probabilities that Father B. sexually assaulted him before the school closed is a patently erroneous decision. The question, however, to be decided is not whether with the benefit of after-the-fact information, it can be shown that the Adjudicator made an error of fact; rather the question for this court is whether the Re-Review Adjudicator failed to apply the IAP Model such that this court should intervene and correct that failure. Without the benefit of the information contained in document AGA-0817 and in document AGA-001041, I conclude that he did.

[62] The Re-Review Adjudicator was required to consider the Review Provisions of Schedule “D”, which provide:

i. For cases within the standard or complex track, any party may ask the Chief Adjudicator or designate to determine whether an adjudicator’s, or reviewing adjudicator’s, decision properly applied the IAP Model to the facts as found by the adjudicator, and if not, to correct the decision, and the Chief Adjudicator or designate may do so.

ii. In both the standard and the complex issues tracks, Claimants may require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error.

iii. In the complex issues track, the defendants may require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error.

iv. If a palpable and overriding error is found, the reviewing adjudicator may substitute their own decision or order a new hearing.

v. All reviews are on the record (no new evidence permitted) and without oral submissions.

vi. The party seeking the review may provide a short written statement of their objections to the decision (not to exceed 1500 words) and the other parties may provide a brief reply (not to exceed 1000 words). In exceptional circumstances the Chief Adjudicator may permit the parties to exceed these limits.

vii. The reply shall be provided to the party seeking the review, who may seek leave from the Chief Adjudicator to make further submissions, not to exceed 500 words. The application shall be accompanied by the proposed submissions. Leave may be granted only in exceptional cases where the Chief Adjudicator determines that the submissions respond to a significant issue raised for the first time in the reply, or seek to correct a fundamental error of fact or interpretation in the reply.

[63] The Re-Review Adjudicator held that on an application for a second review, the only ground available to challenge the Adjudicator’s decision is that of a failure by the Review Adjudicator to properly apply the provisions of the IAP Model to the facts as found by the Adjudicator. The Re-Review Adjudicator held that the standard of review was the correctness standard with respect to the application of the IAP model with complete deference to the Initial Adjudicator’s factual determinations. The Re-Review Adjudicator held that for a second review there is no review on the ground that the decision of either the Initial Adjudicator or Review Adjudicator contains a palpable and overriding error.

[64] I disagree with the Re-Review Adjudicator’s conclusion about the proper test for an IAP Re-Review. The Review Provisions of Schedule D are clear that the Re-Review Adjudicator can be asked to determine “whether an adjudicator’s, or reviewing adjudicator’s, decision properly applied the IAP Model to the facts as found by the adjudicator” (emphasis added). To restrict the Re-Review Adjudicator’s review to the decision of the Review Adjudicator alone is not only inconsistent with the language of the IRSSA, but leads to the myopic logic that caused the grave injustice done in the present case.

[65] The Re-Review Adjudicator should have asked himself whether either or both of the Adjudicator and the Review Adjudicator failed to apply the IAP Model. He failed to ask himself that question. He, therefore, failed to correct the errors in the application of the IAP Model made by both the Adjudicator and the Review Adjudicator.

[66] As to the Re-Review Adjudicator’s conclusion that he was without jurisdiction to even consider whether the decision of the Adjudicator or the Review Adjudicator contains a palpable and overriding error, I conclude this is a dangerous over-simplification of the Re-Reviewer’s task. Schedule “D” describes generally two kinds of review: review for palpable and overriding error (which can include, but is not limited to, errors of fact), and review for the correct application of the IAP Model to the facts as found by the adjudicator. However, these two types of review are not necessarily sealed, separate compartments. In certain cases, this being one of them, the two kinds of review inevitably collide.

[67] The Re-Review Adjudicator in this case properly identified the Adjudicator’s failure to apply the IAP Model by making findings based on her erroneous use of extra-curial and personal knowledge. As the Re-Review Adjudicator properly noted, Appendix X of Schedule “D” permits Adjudicators to use information beyond the information provided by the parties in each individual case but that permission to use extra-curial knowledge is largely restricted to information that Adjudicators come to know as a result of their experience deciding many IAP claims or because they “may bring to the job an extensive background in dealing with child abuse.” The permission under Appendix X is not a general licence to use any information personally known to the Adjudicator by independent research or by his or her own life experiences. And, in any event, the use of the extra-curial knowledge is constrained because the Adjudicator may not rely on it as an independent basis for conclusions of fact or to assess the impact of abuse on an individual.

[68] In this case, the Adjudicator’s erroneous use of extra-curial knowledge was a clearly improper application of the IAP Model that the Re-Review Adjudicator was required to correct. However, instead of asking himself what effect this error had on the Adjudicator’s decision, the Re-Review Adjudicator appears to have asked himself what effect this error had on the Review Adjudicator’s decision. He notes (at paragraph 52 of the Re-Review) that the Review Adjudicator listed the facts on which the Adjudicator relied. That list of facts did not include the Adjudicator’s personal knowledge regarding when altar boys could begin their training. At this point, the Re-Reviewer should have been concerned that the Review Adjudicator had missed such a glaring and crucial error. Instead, the Re-Reviewer concluded this must have meant that the Review Adjudicator had somehow implicitly “corrected” the Adjudicator’s decision.

[69] Since the Adjudicator was the one to make the error, the Re-Reviewer should have corrected the Adjudicator’s decision. And since the Adjudicator’s fundamental error was to cast her personal knowledge as a “factual finding,” there was no way for the Re-Review Adjudicator to correct the decision without upsetting the constellation of “facts” relied upon by the Adjudicator. Where an Adjudicator fails to properly apply the IAP Model by misconstruing her power to make critical findings based solely on her own extra-curial knowledge, the deference usually given to facts as found by an Adjudicator cannot be used as a shield to protect the decision. The error must be corrected, even if doing so appears to bleed into a review for palpable and overriding factual error. Speculation dressed up as “fact” does not insulate that speculation from correction.

[70] Here, the Initial Adjudicator found that M.F. was a credible and reliable witness and within M.F.’s credible and reliable evidence, there was testimony that he was sexually assaulted at the school before the school closed. There was no evidence proffered to suggest that the sexual assault did not occur or that it occurred after the school closed other than: (a) the Adjudicator’s speculation about the timing of a Catholic religious confirmation and the duration of training to be an altar boy, which use of extra-curial knowledge was improper and inaccurate; and (b) the inability of the 62-year old M.F to recall horrific events he experienced over 50 years’ ago when he was a young child. Once the Adjudicator’s speculation is excised from the case, there is no basis to conclude that M.F. had failed to prove on the balance of probabilities that he was assaulted before the school closed.

[71] To hold that M.F. had not met the civil standard of proof to qualify for IAP compensation when it was uncontested that the sexual assault had occurred, when M.F. was found to be credible and reliable, and when every other salient fact to support his claim had been proven, and when there was adequate evidence to conclude that the assault had occurred at the school before it was closed was to make an inconsistent, discordant, and with respect, perverse finding of fact. This palpable error was confirmed by the after-the-fact acquired evidence but it was palpably wrong without its erroneousness being confirmed.

[72] Finally, even if the Re-Review Adjudicator should have confined his review to the Review Decision rather than the initial decision, in my view he erred and misapplied the IAP Model in affirming the Review Adjudicator’s decision. The Review Adjudicator was expressly required to determine whether the Adjudicator had made a palpable and overriding error.

[73] Even if I were to accept that the Re-Review Adjudicator could not himself review either the initial or the Review decision for palpable and overriding error, surely the Re-Review Adjudicator was required to consider whether the Review Adjudicator applied the proper test for palpable and overriding error. If the Review Adjudicator failed to articulate and apply the appropriate test for what constitutes palpable and overriding error, then the Review Adjudicator has failed to apply the IAP Model as required.

[74] In the immediate case, the Review Adjudicator looked to the guidance of the Supreme Court of Canada’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 as to what counts for a palpable and overriding error and otherwise applied the Supreme Court of Canada’s decision in the administrative law decision of Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9 to define the standard of review of a Review Adjudicator.

[75] I agree with the Review Adjudicator that Housen v. Nikolaisen defines what constitutes a palpable and overriding error of fact that would justify a Review Adjudicator substituting his or her own decision or ordering a new hearing. A "palpable" error is one that is obvious, plain to see or clear: Housen v. Nikolaisen, supra, at paras. 5-6. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at paras. 296-97, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 291. For the reasons expressed above, in the immediate case, I conclude that the Adjudicator made a palpable and overriding error of fact and this error should have been corrected by the Review Adjudicator, who rather repeated the error. The Re-Review Adjudicator did not apply the IAP Model to the facts when he failed to correct this error of the Review Adjudicator.

[76] I disagree with the Review Adjudicator that Dunsmuir v. New Brunswick is relevant to the exercise of a Review Adjudicator’s jurisdiction to review decisions of Adjudicators. It is not the case that a Review Adjudicator must defer to the decision of an Adjudicator where the reasoning path of the original Adjudicator is clear and an outcome falls within a reasonable range of outcomes. That level of deference is an abdication of the Review Adjudicator’s responsibility under the IRSSA to perform the assignments that he or she is obliged to perform in order to carry out a review. The Re-Review Adjudicator did not apply the IAP Model to the facts when he failed to correct this error of the Review Adjudicator.

5. What Relief Should the Court Grant on this RFD?

[77] As noted above, in Fontaine v. Duboff, Edwards Haight & Schacter, supra, where a final decision reflects a failure to comply with the IRSSA, which includes the IAP, an aggrieved party may apply request directions; i.e., bring a RFD application to the court ensure that the bargain to which they consented is respected. In the immediate case, Canada conceded that this remedial jurisdiction was available and Canada submitted that the appropriate order for the court to make was to direct a rehearing of the IAP claim with instructions as to the manner of the hearing.

[78] I agree that a rehearing is an available remedy for what occurred in the immediate case, but I think that there are alternatives. The alternatives include the court deciding the IAP claim without referring the matter to the Chief Adjudicator.

[79] In saying that the court can decide the matter, I mean a judge or referee appointed by the judge hearing the RFD. In either case, the court would be exercising is curial and other jurisdiction to oversee and administer class action settlements. In the immediate case, referees may include other judges from across the country and the court lawyer appointed under the IRSSA is another candidate.

[80] In the immediate case, there is what can be characterized as fresh evidence that is dispositive of the case. Even without that evidence, the decision as I have corrected it can only lead to one result. In these circumstances, I have decided not to send the matter back to the Chief Adjudicator or to appoint a referee; rather, subject to providing the parties a 30-day opportunity from the date of this decision to settle the IAP award and M.F. claim for costs, I shall quantify the award and I shall also determine M.F.’s claim for costs.

D. CONCLUSION

[81] For the above reasons, I order that if the parties are unable to settle the amount of the award and the amount for costs, they shall make submissions in writing based on: (a) the record now before the court; (b) a bill of costs with supporting documents; (c) a factum of no more than 30 pages; and (d) a book of authorities. Further, I order that subject to the parties settling the matter, M.F. shall have 60 days from the date of this decision to make his submissions followed by Canada’s submissions within a further 30 days. There shall be no reply submissions without leave.

Perell, J.

Released: July 5, 2016

APPENDIX “A”

SCHEDULE “D”

INDEPENDENT ASSESSMENT PROCESS (IAP)

FOR CONTINUING INDIAN RESIDENTIAL SCHOOL ABUSE CLAIMS

I: COMPENSABLE ABUSE

The following categories of claims are compensable within this IAP.

1. Sexual and physical assaults, as particularized in the Compensation Rules and Instructions below, arising from or connected to the operation of an IRS, whether or not occurring on the premises or during the school year, committed by adult employees of the government or a church entity which operated the IRS in question, or other adults lawfully on the premises, where the Claimant was a student or resident, or where the Claimant was under the age of 21 and was permitted by an adult employee to be on the premises to take part in authorized school activities.

III. ASSESSMENT PROCESSS OUTLINE

a. Core Assumptions as to Legal Compensation Standards

iii. Standards for compensable wrongs and for the assessment of compensation have been defined for this IAP. The adjudicator is bound by those standards.

v. Adjudicators are, subject to rights of review, empowered to make binding findings on credibility, liability and compensation within the standards set for the IAP.

b. Resolution Processes within this IAP

i. This IAP consists of a standard track, a complex issues track, and a provision for access to the courts for the resolution of certain of the continuing claims as set out below.

iv. Both tracks within the IAP utilize the inquisitorial model, as defined below.

d. Materials for Adjudicator for Individual Cases

i. The IAP Secretariat will provide the adjudicator with relevant documents and witness statements (as submitted by the parties), two weeks before hearings to facilitate structured questioning.

e. Procedure – General

i. This IAP uses a uniform inquisitorial process for all claims to assess credibility, to determine which allegations are proven and result in compensation, to set compensation according to the Compensation Rules, and to determine actual income loss claims.

ii. In this inquisitorial model, the adjudicator is responsible for managing the hearing, questioning all witnesses (other than experts retained by the adjudicator) and preparing a decision with his or her conclusions and reasons.

iii. The adjudicator’s questioning must both draw out the full story from witnesses (leading questions are permitted where required to do this), and test the evidence that is given (questioning in the form of cross examination is permitted where required to do this).

iv. The role is inquisitorial, not investigative. This means that while the adjudicator must bring out and test the evidence of witnesses, only the parties may call witnesses or produce evidence, other than expert evidence.

v. The Claimant and the alleged perpetrator may give their evidence in their own words in narrative form and are subject to questioning by the adjudicator. Refusal to answer questions may result in finding that answers would have been detrimental to the witness's position.

vi. The Claimant may read a prepared statement, but this may impact credibility.

h. Burden of Proof and Evidentiary Standards

i. Except as otherwise provided in this IAP, the standard of proof is the standard used by the civil courts for matters of like seriousness. Although this means that as the alleged acts become more serious, adjudicators may require more cogent evidence before being satisfied that the Claimant has met their burden of proof, the standard of proof remains the balance of probabilities in all matters.

ii. The adjudicator may receive, and base a decision on, evidence adduced in the proceedings and considered credible or trustworthy in the circumstances.

v. Counsel may agree on foundation and other facts and so advise the adjudicator. Such agreement binds the adjudicator. This is not to prevent the whole narrative being told if the Claimant so wishes.

k. Decision

i. The adjudicator will produce a decision in a standard format outlining key factual findings and providing a rationale for finding or not finding compensability within the IAP and for the compensation assessed, if any.

l. Review

i. For cases within the standard or complex track, any party may ask the Chief Adjudicator or designate to determine whether an adjudicator’s, or reviewing adjudicator’s, decision properly applied the IAP Model to the facts as found by the adjudicator, and if not, to correct the decision, and the Chief Adjudicator or designate may do so.

ii. In both the standard and the complex issues tracks, Claimants may require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error.

iii. In the complex issues track, the defendants may require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error.

iv. If a palpable and overriding error is found, the reviewing adjudicator may substitute their own decision or order a new hearing.

v. All reviews are on the record (no new evidence permitted) and without oral submissions.

vi. The party seeking the review may provide a short written statement of their objections to the decision (not to exceed 1500 words) and the other parties may provide a brief reply (not to exceed 1000 words). In exceptional circumstances the Chief Adjudicator may permit the parties to exceed these limits.

vii. The reply shall be provided to the party seeking the review, who may seek leave from the Chief Adjudicator to make further submissions, not to exceed 500 words. The application shall be accompanied by the proposed submissions. Leave may be granted only in exceptional cases where the Chief Adjudicator determines that the submissions respond to a significant issue raised for the first time in the reply, or seek to correct a fundamental error of fact or interpretation in the reply.

APPENDIX VII: GOVERNMENT DOCUMENT DISCLOSURE

The government will search for, collect and provide a report setting out the dates a Claimant attended a residential school. ….

The government [Canada] 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. [“Person of Interest Report” or “POI Report”]

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. [“IRS School Narrative”]

In researching various residential schools to date, some documents have been, and may continue to be, found that mention sexual abuse by individuals other than those named in an application as having abused the Claimant. The information from these documents will be added to the residential school report. Again, the names of other students or persons at the school (other than alleged perpetrators of abuse) will be blacked out to protect their personal information.

The following documents will be given to the adjudicator who will assess a claim:

• documents confirming the Claimant’s attendance at the school(s);

• documents about the person(s) named as abusers, including the persons’ jobs at the residential school, the dates that worked or were there, and any sexual or physical abuse allegations concerning them;

• the report about the residential school(s) [the Narrative] in question and the background documents; and,

• any documents mentioning sexual abuse at the residential schools in question.

With respect to student-on-student abuse obligations, the governments will work with the parties to develop admissions from completed examinations for discovery, witness or alleged perpetrator interviews, or previous DR [dispute resolution] or IAP decisions relevant to the Claimant’s allegations.

APPENDIX IX: INSTRUCTIONS FOR ADJUDICATORS

I. APPLICATION OF THE COMPENSABLE CLAIMS CRITERIA

In this IAP, compensation will be paid for all proven continuing claims, but not otherwise.

It is the adjudicator’s responsibility to assess the credibility of each allegation, and, for those allegations which are proven on the civil standard, to determine whether what has been proven constitutes a continuing claim under this IAP.

The criteria for a continuing claim flow from, but may differ from, established case law on vicarious liability and negligence. Adjudicators are not to have reference to case law on vicarious liability or negligence. The compensability of proven continuing claims must be determined only by reference to the terms of this IAP, including instructions issued pursuant to it.

A. Physical or Sexual Abuse Committed by an Adult

2. Where the victim was not a student or resident

Where a sexual or physical assault was committed by an adult on a non-student, the following tests must be met:

(a) Was the alleged perpetrator an adult employee of the government or a church entity which operated the IRS in question? If so, it does not matter whether their contract of employment was at that IRS.

(b) If the alleged perpetrator was not an adult employee, were they an adult lawfully on the premises?

(c) Was the Claimant under the age of 21 at the time of the assault?

(d) Did an adult employee give the Claimant permission (i) to be on the premises (ii) for the purpose of taking part in school activities?

(e) Did the assault arise from, or was it connected to, the operation of the school? This test will be met where it is shown that a relationship was created at the school which led to or facilitated the abuse. If the test is met, the assault need not have been committed on the premises. The permission to be on the premises for an organized activity creates the circumstances in which an assault may be compensable if the other tests are met, but it does not also circumscribe the location in which an assault must have been committed to qualify as one which arose from or was connected to an IRS.

APPENDIX X: THE USE OF EXTRA-CURIAL KNOWLEDGE BY ADJUDICATORS

INTRODUCTION

A number of issues will arise concerning the ability of adjudicators to make use of information obtained or known beyond that provided by the parties in each individual case. There are several aspects to this matter:

-use of background information and/or personal knowledge, for example on

-schools

-child abuse and its impacts

-the residential school system

-carry-forward of information from hearing to hearing, for example on

-alleged perpetrators and the modus operandi of proven perpetrators

-conditions at a school

-credibility findings

-use of precedents from other adjudicators

-ability of adjudicators to confer

The approach to be taken to these issues is set out below, by reference to the source of the information in question.

1. Orientation Materials Provided to Adjudicators

Adjudicators will be supplied with orientation materials on the residential school system and its operations, as well as on child abuse and its impacts.

2. Personal Knowledge of Abuse and its Impacts

Some adjudicators may bring to the job an extensive background in dealing with child abuse, or may receive information on child abuse and its impacts at training sessions or continuing education programs, or through their own reading or research.

The approach to the use of this kind of information is as follows:

Adjudicators may use their personal knowledge, training they have received, or general educational materials, as a basis for questioning witnesses, or testing the evidence, but may not rely on them as an independent basis for their conclusions of fact or their assessment of the actual impact of abuse on an individual.

3. Document Collections

Adjudicators will be provided with Canada’s, and potentially a church’s, document collection on each school for which they are holding hearings. This material will also be available to Claimants and their counsel.

The approach to the use of this kind of information is as follows:

Adjudicators are expected to inform themselves from this material, which may be used as a basis for findings of fact or credibility. Where any of it is so used by adjudicators, it must be cited and its relevance and the rationale for use set out in the report.

Because this information is specific to the school in question and is provided in advance, it is expected that adjudicators will be familiar with it before starting a hearing to which it is relevant. Given this, before relying

on specific documents to help decide a given case, the adjudicator should seek the consent of the parties, or put the relevant extracts to any witnesses who may be able to comment on them, or whose testimony they may contradict or support. Where there are no such witnesses, or where one or more parties contest the use of the documents, the adjudicator may still use them in his or her decision, but wherever possible should advise the parties of the proposed use of the document so that they may address it in their submissions.

5. Stare decisis

Although reasons will be issued in each case, the IAP will not operate on the basis of binding precedent. All adjudicators are of equal authority, and should not consider themselves bound by each other’s previous decisions. Through conferencing, adjudicators may come to a common interpretation of certain procedural issues, but each case must be determined on its own merit.

CITATION: Fontaine v. Canada (Attorney General), 2016 ONSC 4326

COURT FILE NO.: 00-CV-192059

DATE: 2016-07-05

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: July 5, 2016