CITATION: Fontaine v. Canada (Attorney General), 2016 ONSC 5359

COURT FILE NO.: 00-CV-192059

DATE: 20160825

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:

• Catherine A. Coughlan for the Attorney General of Canada

• Jamieson Halfnight for the Monitor

• Daniel Z. Naymark and Robin Parker for Douglas J. Keshen and Keshen & Major Barristers and Solicitors

HEARING DATE: July 20, 2016

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] Douglas J. Keshen and his former law firm, Keshen & Major Barristers and Solicitors, (“Keshen”) have been caught up in one of the after-tragedies of the Indian Residential Schools Settlement Agreement (“IRSSA”). It is an appalling truth, but some lawyers hired to assist the survivors of the Indian Residential Schools disgraced themselves and the legal profession by further victimizing their Aboriginal clients in a variety of ways.

[2] Although it turned out not to be the case, Mr. Keshen was suspected of being another disreputable practitioner, and pursuant to a Request of Directions (“RFD”) under the IRSSA, I authorized Crawford Class Action Services Inc., which is the Court Monitor appointed under the IRSSA, to conduct an investigation with respect to the legal services provided by Mr. Keshen and his firm (collectively “Keshen”). The Monitor conducted an investigation and prepared a Report. The purpose of the present hearing is to receive the Report and consider what, if any, further order should be made.

[3] Canada seeks an Order that the Monitor’s investigation expense of approximately $500,000 be assessed and that the reasonable costs be paid by Keshen. Subject to assessment, Canada has already paid the Monitor’s costs, and, in effect, Canada seeks to be reimbursed as a form of denunciation of Keshen’s conduct. Canada submits that Keshen should pay for the reasonable costs of the investigation because the Report disclosed conduct that should be denounced to maintain the integrity of the IRSSA. Canada is not seeking costs beyond reimbursement of the reasonable costs of the Monitor.

[4] Mr. Keshen resists the relief requested by Canada, and he seeks an order that there should be a public statement clearing the stain of the allegations of wrongdoing. He submits that he has largely been vindicated by the Monitor’s Report, and he requests that Canada should pay Keshen its costs of the RFD on a substantial indemnity basis.

[5] For the reasons that follow, I dismiss Canada’s and Keshen’s requests for relief. I order that there should be no costs for the RFD.

[6] Guided by Justice Brown’s decision in Fontaine v. Canada (Attorney General), 2015 BCSC 1968 [Bronstein #2], I shall assess the Monitor’s expenses for the investigation.

B. EVIDENTIARY RECORD

[7] The evidentiary record for this RFD was comprised of the following:

• The Monitor’s Report, dated April 15, 2016.

• The Monitor’s Supplementary Report, dated July 6, 2016.

• The affidavit of Rose Barry, dated June 23, 2016. Ms. Barry was the former administrator and bookkeeper of Keshen.

• The affidavit of Denis Bouthillette, dated May 18, 2016. Mr. Bouthilette is the acting Senior Resolution Manager with the Settlement Agreement Branch of Indigenous and Northern Affairs Canada.

• The affidavit of Douglas J. Keshen, dated July 11, 2014. Mr. Keshen was cross-examined on July 23, 2014.

• The affidavit of Catherine Knox, dated May 22, 2014. Ms. Knox is an adjudicator under the IRSSA. Ms. Knox was cross-examined on July 23, 2014.

• The affidavit of Sherri Pazder, dated May 5, 2016. Ms. Pazder is a paralegal employed by the Aboriginal Law Section of the Department of Justice Canada.

• The affidavit of Victoria Steger, dated July 11, 2016. Ms. Steger is a legal assistant and law clerk with Naymark Law, the firm of Mr. Keshen’s counsel on the RFD.

It bears emphasis that my determination of the issues raised in this RFD is limited by this evidentiary record, which is itself limited, and that these reasons are not intended to influence the concurrent Law Society proceedings (referred to below), which may involve a different record.

C. FACTUAL BACKGROUND

1. Introduction

[8] To be properly understood, the events associated with Mr. Keshen and his former law firm providing legal services to IRSSA claimants need be put into a larger context. That context reveals in part why it came about that Keshen were investigated by the Monitor to determine whether Keshen was properly and professionally serving its clients.

[9] The larger context includes what I shall call the Blott and Bronstein Affairs. These Affairs, which led to litigation before Justice Brown of the British Columbia Supreme Court, provide factual background, and Justice Brown’s decisions also provide the legal background and some mixed law and fact background for the immediate case.

[10] Thus, in this section of my Reasons for Decision, I shall first describe the larger context, the facts and the law emerging from the Blott and Bronstein Affairs, and then I shall describe the factual background to the immediate case.

2. The Blott and Bronstein Affairs

[11] The history and the nature of the IRSSA is now well known and has been described in numerous judgments from all across the country, all with the style of cause Fontaine v. Canada (Attorney General), which style of cause was a sort of amalgamation of the numerous class actions and individual actions that were settled. I shall not repeat that description here.

[12] The IRSSA was approved by nine provincial courts in December 2006. In March 2007, the courts made implementation and administration orders. One of the implementation details of the IRSSA was the appointment of a Court Monitor. Another implementation detail was the appointment of nine Supervising judges and two Administrative Judges. When issues arise, they are brought before the court through the use of a "Request for Direction" to the Administrative Judges at first instance.

[13] In 2012, an RFD was presented to Justice Brown about the legal services of the law firm Blott & Company, and of its principal, David Blott, a lawyer based in Alberta. The firm acted for claimants in the Independent Assessment Process (“IAP”) of the IRSSA, which was a special adjudicative process designed to provide compensation to claimants for physical and sexual assault claims.

[14] The RFD about the Blott Affair was brought by the Monitor because several of the firm’s former clients had advised the Monitor of the firm’s relationship with several companies advancing loans to IAP claimants. The Monitor had learned of Blott's role in ensuring that the companies making loans were fully repaid through the use of "directions to pay" the proceeds of compensation awards to the lenders. Blott’s former clients also indicated that, notwithstanding significant interest charges and "finders' fees" being charged on loans, monies noted as being lent to them were never advanced and, nevertheless, these monies were deducted from the compensation and paid to the lenders. In addition to being fraudulent, this conduct was very troublesome because s. 18.01 of the Settlement Agreement prohibits assignments of compensation awards from the IAP and directions to pay are considered to be assignments for the purposes of s. 18.01. Moreover, the courts had held that such arrangements violated the Financial Administration Act, R.S.C. 1985, c. F-11. See Fontaine v. Canada (Attorney General), 2008 BCCA 329 [Levesque].

[15] In the Blott Affair RFD, after a hearing on November 10, 2011, Justice Brown ordered the Monitor to conduct an investigation with periodic reports to be provided to the court while the investigation was continuing. The Monitor’s investigation proceeded, and it delivered a Final Report on February 24, 2012.

[16] During the course of its investigation, the staff of the Monitor received and reviewed over 200,000 pages of documents and conducted 24 in-person interviews of individuals connected with Blott and various lenders.

[17] The Monitor’s Report indicated, among many damning facts, that more than 1,100 completed IAP applications in Blott's possession or control had never been submitted. From the interviews conducted with 786 Blott clients, 38% expressed dissatisfaction or concerns with their representation by Blott lawyers. The issues raised included concerns about meeting with their lawyer for the first time at the hearing, an inability to contact counsel, and inaccurate information in their applications.

[18] The Report indicated 77 Blott claimants had received over 380 loans from various lenders for which directions to pay had been accepted or facilitated by Blott. Taking all fees and interest charges into account, 73% of these loans from one lender exceeded the criminal interest rate of 60% per annum. The loans made to a sample of six claimants were analyzed in more detail. Taking all available information into account, it was found that over $79,000 of the ostensible loans to those claimants were never received by them.

[19] The Monitor's investigation revealed that Blott was paying one of the third party lenders, Honour Walk Ltd., a fee of $200,000 per month in respect of its work in relation to IAP claims. Honour Walk had began operations as a form-filling organization and was directing clients to Mr. Blott or his firm. Honour Walk employees were noted to have complete access to the firm’s confidential claimant files.

[20] In addition to the prohibited loan activity, the Monitor's Final Report detailed numerous incidents of other misconduct on the part of Blott & Company, Honour Walk Ltd. and related parties, including the apparent falsification or attempted falsification of claims made in the IAP.

[21] In the Blott Affair RFD, after a hearing in April 2012, Justice Brown made an order prohibiting Blott & Company, Mr. Blott, and several others from dealing with or representing IAP claimants and she directed a process for an orderly wind-down of the firm’s IAP practice. See Fontaine v. Canada (Attorney General), 2012 BCSC 839 [Blott].

[22] Several months later, in the fall of 2012, the Blott Affair RFD returned to the court. The Monitor sought to implement additional recommendations about, among other things: adopting guidelines, making the Blott law firm liable for repaying loans and reimbursing claimants, providing a report to the Law Society, and having the Blott law firm pay costs. See Fontaine v. Canada (Attorney General), 2012 BCSC 1671 [Blott #2].

[23] For present purposes, it is the Monitor’s request that the Blott law firm pay the costs of investigation that is pertinent. Justice Brown concluded that the court had the jurisdiction to make this order. She concluded that there was statutory authority to make this order pursuant to British Columbia’s Supreme Court Rules and pursuant to the Class Proceedings Act, RSBC 1996, c. 50. Further, she concluded that there was inherent jurisdiction to order solicitors to pay costs. Justice Brown ordered that the Blott law firm pay for the expense of the investigation but she directed that a final order should not be made until after the Court Registrar had assessed the costs and made a report and recommendation.

[24] Around the same time as Justice Brown was making an order in the Blott Affair, the Monitor brought an RFD with respect to the conduct of Mr. Stephen Bronstein and his law firm, Bronstein & Company. This law firm had represented over 1,400 individuals making claims under the IAP. The Bronstein Affair RFD also concerned the conduct of Ivon Johnny, a form-filler employed by the firm. The Monitor requested, by way of an RFD, that the court order an investigation of Bronstein, and Justice Brown did order an investigation.

[25] In the Bronstein Affair RFD, in January 2013, Justice Brown enjoined Mr. Johnny from any involvement with the IRSSA, and on February 22, 2013, Bronstein, the Monitor, and Canada all agreed to a consent order under which Mr. Bronstein agreed to subject the firm’s IAP practice to a review by the Monitor.

[26] Under the consent order, Mr. Bronstein and his firm agreed to provide the Monitor with disclosure about its IAP practice. Mr. Bronstein agreed to attend an interview with the Monitor. The firm also consented to being required to retain a practice advisor. Mr. Bronstein was to meet with this advisor to establish a practice plan to complete the remaining IAP claims in a manner consistent with best practices for handling IRS claims.

[27] The consent order was complied with and after disclosure and the interviews, the Monitor identified several issues with Bronstein's IAP practice that still concerned it. The Monitor brought another RFD about these matters, which RFD led to a sequence of hearings in 2014.

[28] This phase of the Bronstein Affair culminated with Justice Brown releasing another decision on May 5, 2015. In Fontaine v. Canada (Attorney General), 2015 BCSC 717 [Bronstein], Justice Brown declined to remove Mr. Bronstein as lawyer for the IAP claimants. Although she concluded that his professional conduct fell below the acceptable standards for a legal professional, she did not disqualify him or his firm. The major ground of unprofessionalism was Mr. Bronstein’s failure to supervise Mr. Johnny and to respond to the clients’ complaints. However, rather than disqualifying the firm, Justice Brown ordered that it continue to participate in the IAP under the supervision of the Practice Advisor. As a sanction for the unprofessionalism, she ordered that Bronstein and his firm be liable for the reasonable costs of the Monitor's investigation on a "special costs" scale. In her Reasons for Decision, Justice Brown stated at paras. 4-5:

4. Upon hearing all of the evidence, I agree with the Monitor that Bronstein's conduct fell below the standard expected of legal professionals representing clients under the Settlement Agreement, and in particular, in the IAP. However, I am not convinced that Bronstein's conduct makes it is [sic] necessary to remove the lawyer and the law firm from the IAP and cause disruption to its over 150 clients who have outstanding IAP claims. This is particularly the case because, in response to these proceedings, Bronstein has demonstrated that it is capable of revising its practice in order to reach acceptable standards. Bronstein will continue to participate in the IAP, but will do so under the continued supervision of its Practice Advisor and will continue to update the court on its progress.

5. However, this is no exoneration of Bronstein: the evidence convinces me that were it not for the intervention of the Monitor and this court, Bronstein would not have reached these acceptable standards. Bronstein should pay reasonable costs of the Monitor's investigation. …

[29] In her Reasons for Decision, Justice Brown found three categories of professional failures by Bronstein and his firm, namely: (1) the failure to supervise Mr. Johnny and to respond to complaints about him; (2) the inadequacy in the representation of IAP claimants; and (3) the practice of involving clients with third party lenders. With respect to the last category - which is the one most pertinent to the circumstances of the immediate case before me - Justice Brown stated at paras. 65-70 and 99-104:

65. An additional allegation against Mr. Bronstein is in regard to his admitted practice of extending loans to his IAP clients that were secured against the clients' IAP awards, contrary to the IRSSA and s. 67 of the Financial Administration Act, both of which prohibit the assignment of amounts owing under the IRSSA.

66. Between the period of April 2009 and October 2011, Mr. Bronstein made 158 loans to his IAP clients. The total amount loaned was $212,250. The overwhelming majority of these loans were in the range of $1,000-$2,000. In exchange for receiving these loans, Mr. Bronstein's clients would sign documents authorizing Bronstein to deduct the loaned amount from the settlement funds, once received. As the Monitor states, Mr. Bronstein used "an assignment of IAP funds" as security for these loans. Mr. Bronstein stopped providing these loans in November 2011, when he faced a complaint to the Law Society in regard to this practice.

67. Mr. Bronstein's evidence is that he made these loans on request from his clients and that he did not charge interest (however, there are three instances in which he charged a $50 administration fee). Mr. Bronstein states that he did not provide loans as a client-recruitment mechanism. He points to the fact that he would only provide these loans once the clients had completed their hearings, and not at the beginning of the relationship, as evidence of his efforts to avoid the impression that he was "trying to induce somebody to become my client". In Mr. Bronstein's view, he provided these loans to help his clients.

68. The Monitor concedes that there is no evidence in the record that Mr. Bronstein directly promoted this service, or that Mr. Johnny did so on his behalf.

69. For his part, Mr. Bronstein states that he was not aware of the prohibition of assignments in IRSSA until the Chief Adjudicator issued a directive on third party loans in June 2011.

70. Mr. Bronstein also states that this was the same time when he became aware of the British Columbia Supreme Court's 2007 decision and the Court of Appeal's 2008 decision in Levesque, a decision which clarified the prohibition on assignments in the IRSSA. However, Mr. Bronstein's evidence is that he did not believe that the decision in Levesque applied to his interest free loans because "they were of an entirely different nature to those dealt with by the court in the Levesque decision".

71. While problematic, the issues regarding Mr. Bronstein's secured loans to his clients are less concerning. To be clear, Mr. Bronstein's conduct in granting these loans was contrary to the IRSSA and the Financial Administration Act. Both clearly prohibit the assignment of settlement funds, which is a form of Crown debt. Section 18.01 of the IRSSA states that:

No amount payable under this Agreement can be assigned and such assignment is null and void except as expressly provided for in this Agreement.

100. Similarly, s. 67 of the Financial Administration Act prohibits the assignment of any Crown debt:

101. Except as provided in this Act or any other Act of Parliament,

(a) a Crown debt is not assignable; and

(b) no transaction purporting to be an assignment of a Crown debt is effective so as to confer on any person any rights or remedies in respect of that debt.

101. However, whether Mr. Bronstein's interest free loans would engage the rationale for this prohibition is less clear. The British Columbia Court of Appeal's decision in Fontaine v. Canada (Attorney General), 2008 BCCA 329 ("Levesque") dealt with this issue, and it noted the following at paragraph 36:

It is not beyond human experience that a compensation scheme broadcast widely (as was this one) would attract people seeking a share of the proceeds in arrangements such as these. I think it may be safely said that one purpose of s. 18.01 was to limit the potential for the class members to be fleeced of their funds, or any portion of them, before they were received by the individual.

102. The factual matrix under which Levesque was decided brings added context to these words, as that case was concerned with high interest loans made by third party settlement lenders.

103. There is no evidence that Mr. Bronstein benefitted personally from these loans (except for the three cases where he charged administration fees). Mr. Bronstein's loans did not "fleece" any of the claimants of their funds.

104. The fact that Mr. Bronstein continued to receive payment under the loans past the date when he alleges that he appreciated the prohibition on assignments is problematic. However, the issue is whether this fact makes it necessary that Mr. Bronstein be removed from the IAP - and it is not clear that it should.

[30] In her Reasons for Decision, Justice Brown noted that the court’s jurisdiction to make a remedial order for the misconduct of lawyers providing services for IRSSA claimants had been explained in the Blott Affair judgments. At paras. 86-88, she stated:

86. None of the parties takes any issue with this Court's jurisdiction to remove Bronstein from participation in the IAP. All of the parties agree that the relevant principles guiding such a decision are found in my decision in Fontaine v. Canada (Attorney General), 2012 BCSC 839 (the "Blott Decision"). This decision dealt with the Monitor's request that, among other forms of relief, Mr. David Blott and his law firm be removed from participation in the IAP on account of deficiencies in his practice as well as his relationship with a form filler/client referral firm and companies making loans to his IAP clients.

87. While I do not intend to summarize my reasons in that decision, the main principles in the Blott Decision, which all of the parties to this matter appear to accept as governing, are as follows (paragraph numbers to the Blott Decision in parenthesis):

(a) pursuant to s. 12 of the Class Proceedings Act (the "CPA") and the terms of the Implementation Order of the IRSSA, the court has a supervisory role over the administration of the IRSSA (paras 112/113);

(b) this supervisory jurisdiction extends to the relationship between class members and their counsel, especially where there is evidence of a particular vulnerability (para 122);

(c) as part of this jurisdiction, courts may sever the solicitor-client relationship where "circumstances dictate that it must be done". However, this must be considered "an extraordinary exercise" of the jurisdiction (para 123);

(d) in exercising this jurisdiction, courts can fashion a broad range of remedies; however, the jurisdiction should be exercised "with restraint" (para 127);

(e) the purpose of this supervisory jurisdiction is to ensure that legitimate claims are compensated to the full extent available under the Settlement Agreement's terms; the process by which those claims are adjudicated has the integrity, impartiality and transparency expected of other court processes; and that IAP claimants have the opportunity to have their claims adjudicated in a non-confrontational process (paras 130/131); and

(f) courts should only exercise their jurisdiction to sever the solicitor client relationship where these purposes cannot be achieved by more limited intervention (para 133).

88. Therefore, according to the Blott Decision, counsel should only be removed from the IAP if such removal is necessary to achieving the above-noted objectives. If any lesser measures will achieve this goal, they should be adopted instead.

[31] As noted several times above, Justice Brown decided that the appropriate remedy in the Bronstein Affair RFD was not to remove Mr. Bronstein from the IAP process but to order that he pay for the costs of the investigation, which had led to the salutary outcome that his standard of practice had improved.

[32] Justice Brown rejected Mr. Bronstein’s argument that the court did not have the jurisdiction to order the subject of a Monitor’s investigation to pay the costs of the investigation. At paras. 123-126, she stated:

123. Mr. Bronstein contends that the court's supervisory jurisdiction under the IRSSA does not grant it the jurisdiction to grant such costs. Counsel to Mr. Bronstein takes the position that because the Implementation Order already provides that Canada will pay the Monitor's costs, permitting a costs award against his client would be tantamount to an amendment to the IRSSA.

124. There are two problems with this argument: (i) it confuses the Implementation Order with the IRSSA; and (ii) it requires a very strict construction of the IRSSA that is contrary to the purposive approach to contractual interpretation applicable to the IRSSA (see Fontaine v. Canada (Attorney General), 2014 BCSC 941). In this regard, Canada's position is preferable and likely more consistent with the intentions of the parties, namely, that the IRSSA:

... does not impose financial obligations upon Canada to fund the supervision and investigation of lawyers who represent IAP claimants. Canada submits that it should not be required to assume such obligations which flow directly out of the misconduct of the Bronstein Parties.

125. In my view, the authority to order payment of the expense of an investigation is a necessary corollary of the court's supervision of the IRSSA's implementation (paragraph 23 of the Implementation Orders.)

126. In terms of the type of conduct that will merit an order of special costs as against a solicitor, in Blott #2, I canvassed the relevant authorities and noted that "reprehensible conduct" was necessary. More recent decisions have noted that special costs are appropriately awarded to penalize conduct from which a court seeks to dissociate itself.

[33] Subsequently, Justice Brown determined that the costs or expenses of the investigation claimed by the Monitor were in excess of what was reasonable and proportionate in the circumstances. The Monitor claimed that it spent $3,279,011.63, inclusive of HST of $389,717.18 in the course of its investigation of Bronstein. Justice Brown, however, concluded that the reasonably necessary costs of the investigation were just $1,459,820.51, exclusive of tax. Of this sum, she found that Mr. Bronstein and his firm were liable to pay $1,250,000, inclusive of tax. See Fontaine v. Canada (Attorney General), 2015 BCSC 1968 [Bronstein #2].

[34] At paragraphs 88 and 89 of her judgment, Justice Brown stated:

88. Despite my above determination of the Monitor's reasonable costs, I accept that $1.25 million is fair for Mr. Bronstein to pay as special costs. Not all aspects of the investigation or amounts spent were solely due to Mr. Bronstein. Mr. Bronstein succeeded on several of the court applications. It would not be fair to charge all of the expenses incurred in the investigation to him.

89. With respect to the conduct of the Monitor, I do not criticize the Monitor for its handling of the investigation. The investigation was worthwhile and benefitted Bronstein's clients and the public. However, some costs of the investigation went beyond what was expected at the outset and beyond what can be termed reasonable and proportionate at the conclusion. As counsel for Bronstein rightfully notes, part of the motivation for placing limits on this investigation was to avoid the costs that occurred in the Blott matter [Affair]. Instead, in this matter which is far less complex than Blott, the Monitor presented a bill of costs that is almost identical.

[35] In the Bronstein Affair, at the same time as the costs of the investigation ruling, Justice Brown also dealt with an issue about whether the Monitor had the authority to settle the amount of costs payable by Bronstein unilaterally without the consent of Canada. Justice Brown concluded that Monitor had the authority to settle a claim for the investigation-related costs with the lawyer being investigated, but the Monitor’s decision had to be approved by the Court, with Canada being provided with an opportunity to make submissions. See Fontaine v. Canada (Attorney General), 2015 BCSC 1969 [Bronstein #3].

3. The Keshen Investigation

[36] With this background from the Blott and Bronstein Affairs, I can now turn to describe the circumstances of the investigation of Keshen.

[37] Mr. Keshen was called to the bar in 1978, and he began his practice of Aboriginal law in Kenora, Ontario. He was retained to do work for the Grand Council Treaty 3 and for Ojibway Tribal Family Services, a First Nation-operated child welfare agency that he helped to establish.

[38] In 2003, Mr. Keshen began to be retained by victims of the Indian Residential Schools. At the time there was an Alternative Dispute Resolution Process in which he represented 135 claimants. He continued this work for victims of the Indian Residential Schools after the IRSSA came into force. Mr. Keshen says that he did not seek the work, but it came to him because of his reputation of securing good results doing this work. Over approximately 12 years, he acted for 691 CEP (Common Experience Payment) claimants and for 202 IAP and NSP (Negotiated Settlement Process) claimants, earning fees and disbursements of approximately $6.2 million or approximately $500,000 annually.

[39] In September 2013, Catherine Knox, a Deputy Chief Adjudicator, travelled to Kenora as part of a special investigation project undertaken by the Indian Residential Schools Adjudication Secretariat concerning the conduct of form-fillers. The Secretariat administers the IAP. She was introduced to four IAP claimants who had expressed concerns about how their IAP compensation had been paid out by Mr. Keshen. They advised Ms. Knox that they believed that Mr. Keshen had not paid them their full IRSSA awards.

[40] In response to the Secretariat’s inquiries, Mr. Keshen advised the Secretariat that the full awards had been paid and that he had not charged a contingency fee to the clients but had only received the compensation available under the IRSSA that is not deducted from the claimant’s award (that is, the amount paid by Canada that amounts to 15% of the award).

[41] In the course of responding to the inquiries, Mr. Keshen also disclosed that he had provided some clients with interest-free advances and that he had assisted a few clients in obtaining advances from third-party lenders pursuant to directions to pay. Mr. Keshen was not compensated for these lending activities.

[42] The Secretariat, however, was not satisfied by Mr. Keshen’s responses. It asked the Monitor to investigate Keshen, and in May 2014, the Monitor brought an RFD seeking the court’s authorization for an investigation.

[43] Mr. Keshen did not oppose the investigation request, and he subsequently fully co-operated in disclosing information to the Monitor.

[44] On September 9, 2014, I issued an order that the Monitor investigate payments of IAP awards to Mr. Keshen’s clients. The Investigation Order directed the Monitor to complete its investigation within 60 days and to report within 30 days thereafter. However, the Monitor took longer and delivered its report on April 8, 2015 and a revised report on April 15, 2016.

[45] The operative part of the Order focussed on an investigation of what happened with the awards and fees for the IAP claimants. The Order was not for a general review of Keshen’s law practice. Paragraph 1 the Order stated:

1. The Monitor conduct an investigation into the circumstances concerning and around the payment of Independent Assessment Process (“IAP”) awards/settlements to IAP Clients of the Keshen Firm (the “Keshen Claimants”) in accordance with those details that are attached as Appendix A to the Monitor’s Request For Direction dated May 27, 2014 the “RFD”) and this order (“the Investigation”).

[46] Appendix A of the Order provided the Terms of Reference for Investigation. These encompassed five items, as follows:

(i) All matters relating to the payment and handling of IAP awards/settlements;

(ii) Examination by the Monitor of retainer and fee agreements, payouts and accounting to claimants of their IAP funds, the existence and terms of any and all advances, loans and/or applications for loans applied for or obtained by Keshen Claimants, by or from any party and such other and further records, material or evidence that may be required;

(iii) Authority to engage any expert along with full and complete access to the books, records, agreements, data including data in electronic form, and other documents in the possession or control of Doug Keshen and/or the Keshen Firm, any other form filler, agent or employee engaged subject to claims of solicitor client privilege;

(iv) Doug Keshen and the Keshen Firm shall cooperate fully and provide assistance, information, access to locations, and documentation that is necessary; and,

(v) Access to information held by the office of the Chief Adjudicator and the Adjudication Secretariat.

[47] In its investigation, the Monitor reviewed the files of the four Keshen clients that had contacted the Secretariat and a sample of 48 randomly selected files (approximately 30% of Mr. Keshen’s case load.) The Monitor interviewed Mr. Keshen and his staff and reviewed over 2,000 documents. It reviewed 168 fee reviews conducted by adjudicators in the claims process under the IRSSA.

[48] The Monitor reported that in 14 files, Mr. Keshen had made personal loans to his clients, which loans were to be repaid from their IRSSA awards and that in 38 files, Mr. Keshen had assisted his clients in procuring third party loans. Referring to this aspect of the Monitor’s findings, Canada submits that Mr. Keshen’s conduct was reprehensible and deserving of denunciation.

[49] The Monitor’s investigation revealed that the clients had received their full awards and that Mr. Keshen had not received any personal benefit with respect to the loan advances he made or that third party lenders had made. Rather, Mr. Keshen lost money, several thousand dollars, because he simply forgave some of his loans to his clients.

[50] The Report indicated that the Monitor had no concerns about whether Mr. Keshen had the competence and the resources to provide legal services and rather observed that Mr. Keshen’s work had been praised by the adjudicators for his diligence and professionalism. The Report indicated that, on average, Mr. Keshen’s clients received above the average award for IRSSA claimants. The Report confirmed that neither Mr. Keshen nor his firm ever charged fees to their IRS clients beyond the 15% available from Canada under the IRSSA. Although under the IRSSA, Mr. Keshen was entitled to charge up to an additional 15% to the clients, payable from the clients’ awards, he did not do so. Mr. Keshen says his firm thus waived over $4 million of revenue between 2004 and 2016.

[51] In its Report, the Monitor provided the following summary of its findings:

As it relates to the matters of the Order directing this investigation the Monitor has found the following:

1. Mr. Keshen and the Keshen Firm charged 15% on account of legal fees for the representation of IAP claimants – this is the amount that was agreed to be paid by Canada and therefore no additional legal fees were charged to claimants.

2. All IAP files contained a completed retainer agreement that clearly stated that the amount of legal fees to be charged was 15%, and that this was Canada’s contribution and not to be paid by the claimant.

3. According to Mr. Keshen, in almost all cases he explained to each claimant the award made and the disposition of funds. However, Mr. Keshen did not send reporting letters to his IAP clients, except in one instance. Mr. Keshen did not provide to his clients any written accounts for fees, disbursements or a trust listing, in any of his IAP files. Although the Monitor determined that a copy of the adjudicators’ decision of the award was provided to the claimant directly by the IAP Secretariat by mail at the same time it was provided to claimant’s counsel, this would not document any disposition of a claimant’s funds through the Keshen firm.

4. The Monitor’s investigation uncovered no instances in which any claimant did not receive 100% of their award, whether paid to them directly or paid out on their behalf, including for the repayment of loans and for payment for goods and/or services that appear to have actually been received by the claimants.

5. Mr. Keshen acted contrary to article 18.01 of the Agreement and section 67 of the FAA when he obtained assignments of his claimants IAP awards either for himself or third-party lenders and then made repayments of loans from the Keshen Trust Account pursuant to such assignments.

6. Despite Mr. Keshen’s firm being a signatory to the IRSSA document, Mr. Keshen states that, until approximately June 2011, he was unaware of the provisions in the Agreement with respect to assignments and directions to pay; after he became aware, Mr. Keshen appears to have stopped activities that would violate article 18.01, except in one case.

7. Mr. Keshen maintains that he did not promote or refer his clients to third-party lenders and, where possible, tried to discourage any such borrowing.

8. No evidence was found to suggest or support that Mr. Keshen derived any direct benefit from any advance or loan made to any client.

9. In cases where Mr. Keshen paid out funds on behalf of clients but documentation is lacking, the Monitor was not able to definitively establish that monies were not paid contrary to the intentions of a client. The Monitor uncovered no evidence that this occurred.

10. Mr. Keshen was the only lawyer from the Keshen firm involved in setting up, assisting or negotiating the client advances or facilitating third-party loans and their repayment.

[52] In its Report, the Monitor noted that as it turned out, Mr. Keshen had been falsely accused of misappropriating his clients’ awards and this had harmed Keshen. In its 2015 Report, the Monitor stated:

The Monitor is concerned that the fact of the investigation became the subject of unwarranted rumour concerning Mr. Keshen and the Keshen Firm. The Monitor recommends that a copy of a shortened and redacted version of its report… be in the public domain and be made available on the Official Court Website along with a statement that the Monitor’s investigation found that Mr. Keshen’s clients did receive the full monetary benefit of their award [FN: Subject to the payment of interest on the Settlement Lender’s Loans], that Mr. Keshen did not profit at the expense of his clients and that his intentions appear to have been to assist his IAP clients.

[53] In its 2016 Report, the Monitor expressed the same concern but modified its recommendation for addressing it to the suggestion that only a shortened redacted version of its report be available to the public. In response, however, to subsequent comments from counsel for the media, who was given notice of the RFD, the parties agreed that the 2016 Report should be made public, subject to redactions to avoid the identification of the IRSSA claimants.

[54] Thus, with two exceptions, now to be described, the Monitor’s Report was largely a vindication for Mr. Keshen.

[55] The first exception concerned Mr. Keshen’s involvement with the third party lenders. Although he discouraged them from dealing with third party lenders, Mr. Keshen did assist a few of his clients in obtaining loans from Settlement Lenders Inc. on terms that included the client’s promise to repay the loans from the IRSSA awards. Mr. Keshen accepted his clients’ instructions to draft assignments of the proceeds as security for the loans.

[56] Although he says that he was not aware of the prohibition of such arrangements in the IRSSA, Mr. Keshen concedes that the loans he helped his clients obtain from Settlement Lenders Inc. contravened s. 18.01 of the IRSSA. Section 18.01 states: “No amount payable under this Agreement can be assigned and such assignment is null and void except as expressly provided for in this Agreement.”

[57] Mr. Keshen, however, does take issue with the Monitor’s findings that the loans violated s. 67 of the Financial Administration Act, R.S.C. 1985, c. F-11, which prohibits the assignments of debts owed by the Crown, and he takes issue with the finding that in three instances the clients were charged criminal rates of interest contrary to s. 347 of the Criminal Code, R.S.C. 1985, c. C-46.

[58] The second exception concerns the Monitor’s conclusion that Mr. Keshen’s practice of reporting to clients orally in lieu of in writing does not fully meet the Law Society of Upper Canada’s Guidelines for Lawyers Acting in Aboriginal Residential School Cases. The Monitor’s 2015 Report stated:

The practice of meeting with claimants personally to explain the award and the disposition of their monies is clearly in the circumstances of these types of cases a good one. Unfortunately, as it was in lieu of a written reporting letter, from a record keeping perspective it is not a best practice.

[59] Mr. Keshen states that he was attentive to explaining the IAP process and the IAP awards to his clients and denies that he did not properly and professionally serve the IAP claimants.

[60] Mr. Keshen submits that the investigation cost him dearly. The publicity that there was an investigation resulted in the departure of clients and the dwindling of his practice. His firm broke up, and he submits his personal practice was largely destroyed.

D. DISCUSSION AND ANALYSIS

1. Introduction

[61] As noted in the Introduction of these Reasons for Decision, Canada seeks an order that Keshen reimburse it for the expenses of the Monitor’s investigation of approximately $500,000, subject to an assessment that those expenses were reasonable, and Mr. Keshen seeks the publication of a public statement designed to restore his professional reputation in the Kenora community and he seeks costs on a substantial indemnity basis for this RFD. In this section of my Reasons for Decision, I shall explain why I am dismissing these requests.

[62] I shall begin my discussion and analysis with three preliminary remarks.

[63] The first remark is that the court is not in the public relations business, and it will be up to the reader of these Reasons for Decision to make their own decision about the Keshen Affair. I would anticipate that these Reasons will go some distance in removing the stain on his reputation but that is a by-product and not the purpose of these Reasons for Decision.

[64] Mr. Keshen consented to the investigation being conducted. That was a reasonable and sensible and honourable thing to do, but it was also reasonable and indeed necessary for the Monitor, prompted by Ms. Knox, to request the court to authorize the investigation. It would have been irresponsible not to follow up on the complaints of the four IAP claimants that Ms. Knox met on her trip to Kenora. The result was an investigation, and the Monitor’s Report and these Reasons for Decision will have to speak for themselves.

[65] The second remark is that since Mr. Keshen concedes that the third party loans in the immediate case contravened s. 18.01 of the IRSSA, for the purposes of this RFD, I need not resolve the debate between the parties about whether or not the third party loans contravened the Financial Administration Act or whether in three instances the clients were charged criminal rates of interest contrary to s. 347 of the Criminal Code.

[66] The essence of Canada’s case that Mr. Keshen should be denounced is based on his role as a lawyer providing services to clients making claims under the IRSSA, and the heart of that case is that the assignment of security for repayment of these loans contravened s. 18.01 of the IRSSA. That the directions to pay may have also contravened the Financial Administration Act is, in my opinion, redundant.

[67] Further, and in any event, there is not an adequate record before the court, including admissible actuarial evidence, to determine whether a criminal rate of interest was charged by the third party lenders. The necessary evidence would also include evidence from the borrowers and the third party lenders.

[68] The third remark is that I shall also not resolve the debate about whether Mr. Keshen violated the Law Society of Upper Canada’s Guidelines for Lawyers Acting in Aboriginal Residential School Cases. Mr. Keshen denies that he violated the Guidelines. As it happens, the issue of whether he did or did not violate the Guidelines and whether he breached his professional obligations to his clients is the subject of concurrent disciplinary proceedings being heard by the Law Society.

[69] For the immediate case, those issues are best resolved in the context of those proceedings and not as a by-product of an investigation that in no way was prompted by whether Mr. Keshen’s reporting to his clients was adequate.

[70] What prompted the investigation in the immediate case were the much more serious allegations that Mr. Keshen had misappropriated the awards of four, and possible more than four, clients. Those serious allegations were not proven to be true.

[71] In any event, if Mr. Keshen did breach the Guidelines he has already been punished for his non-compliance. Had he followed the Guidelines, he likely would have not found himself investigated in the first place.

2. Should Mr. Keshen be Awarded his Costs of the RFD on a Substantial Indemnity Basis?

[72] To a certain extent, but only to a certain extent can Mr. Keshen be regarded as the successful party on this RFD. He was successful in disproving the most serious allegations, which amounted to allegations of fraud and misappropriation, and he was successful in showing that he had good intentions and that he was not exploiting his clients.

[73] However, his conduct in not preparing written reports that meticulously accounted for the client’s award and his fees exposed him to being investigated, and while he did not personally profit from it, his conduct was contrary to s. 18.01 of the IRSSA, which is a serious matter.

[74] Although Canada made a strident attack on Mr. Keshen’s credibility, I believe him when he says that he did not know or recall this provision of the IRSSA. But as in virtually all legal matters, ignorance of the law is no excuse, and Mr. Keshen has conceded that he ought not to have facilitated the loans from third party lenders.

[75] Put simply, in this RFD there was reasonable grounds to order an investigation, and while Keshen emerged with some successes after that investigation, I regard this case as one in which there should be no order as to costs in the RFD.

3. Should Keshen be Ordered to Pay the Monitor’s Costs in Whole or in Part?

[76] Justice Brown’s decisions in the Blott Affair and the Bronstein Affair establish that the court has the jurisdiction to order the subject of a Monitor’s investigation under the IRSSA to pay the costs of the investigation in whole or in part.

[77] That jurisdiction is in addition to the court’s jurisdiction to make other remedial orders arising from the Monitor’s findings and from the Monitor’s recommendations arising from the investigation. For example, the Blott firm was disqualified from acting for IAP claimants, but, subject to a practice advisor, Bronstein’s firm was permitted to complete its work for claimants.

[78] In the immediate case, Canada asks that Keshen be ordered to pay for the costs of the Monitor’s investigation, which was one of the remedial orders made in both the Blott Affair and in the Bronstein Affair, and I have no doubt that the court has the jurisdiction to make this type of order. The genuine issue is not whether the court can make this order but whether it should make this order.

[79] Canada submits that the order should be made to denounce Mr. Keshen’s behaviour and to preserve the integrity of the IRSSA.

[80] Mr. Keshen submits that the court should not make the requested order. He submits that the court’s jurisdiction is reserved for egregious cases such as the Blott Affair and the Bronstein Affair.

[81] Mr. Keshen submits, in effect, that his heart was in the right place and he was trying to do well by and to assist his clients. He denies the need for any denunciation. He says that he was not aware of the breach of s. 18.01 of the IRSSA. He points out that his legal services for the clients secured good to excellent results. He points out that he never gouged his clients for fees and that he did not obtain any personal benefit for the loans he personally made to his clients. He at least attempted to dissuade his clients from borrowing from third party lenders, and he points out that third party litigation lenders are not a new phenomenon and there is the fact that his impoverished clients had immediate needs for the money and apparently the administration of the IRSSA was a slow payer.

[82] I do not agree with Mr. Keshen that the court’s jurisdiction to order the subject of an investigation to pay for the costs of the investigation is reserved only for egregious cases. As Justice Brown noted in Fontaine v. Canada (Attorney General), 2015 BCSC 717 [Bronstein] at para. 126, penal awards are appropriately awarded to penalize conduct from which a court seeks to dissociate itself.

[83] However, I do not think that penal awards are automatic if the Monitor finds conduct from which the court would wish to dissociate itself.

[84] The court’s jurisdiction over its officers and under the IRSSA remains a discretionary and principled jurisdiction and the court is entitled to consider a variety of factors including the seriousness of the alleged misconduct, the co-operation of the lawyer in the investigation, the contrition of the lawyer if he or she is found to have acted in error, the good or bad intentions of the lawyer, whether the misconduct was intentional, reckless, negligent, or inadvertent, the excuses or explanations of the lawyer, the exigencies of the circumstances, the vulnerability or conversely the acumen and astuteness of the client, the discipline history of the lawyer, the involvement of any regulator, and the goals of general or specific deterrence or behaviour management.

[85] An examination of Justice Brown’s decisions in the Blott and the Bronstein Affairs reveals that in exercising the court’s jurisdiction to sanction misconduct by lawyers providing services under the IRSSA, she was attuned to all these factors and perhaps others. She exercised the court’s jurisdiction carefully and in accordance with the particular circumstances, which indeed were more egregious than in the immediate case, but she did not automatically treat Mr. Bronstein in the same way that as she treated Mr. Blott.

[86] In the immediate case, the Monitor made no recommendation in its report that Mr. Keshen should be responsible for the costs of the investigation and while I could order Mr. Keshen to pay for the costs of the Monitor’s investigation in whole or in part, in my opinion, having regard to all the circumstances, I ought not do so.

[87] In my opinion, as far as the IRSSA is concerned, no remedial order is required. I say nothing about what the Law Society may do in its discipline proceedings, but based on the record before me, in my opinion, the appropriate order to make is to dismiss both Canada’s and Mr. Keshen’s requests for remedial orders arising from the Monitor’s investigation.

E. CONCLUSION

[88] For the above reasons, I dismiss Canada’s and Mr. Keshen’s requests for relief. I order that there should be no costs for this RFD.

[89] I shall assess the Monitor’s costs for the investigation by receiving submissions in writing beginning with the Monitor’s submissions within 30 days from the release of these Reasons for Decision followed by Canada’s submissions within a further 30 days. There shall be no right of reply.

Perell, J.

Released: August 25, 2016

CITATION: Fontaine v. Canada (Attorney General), 2016 ONSC 5359

COURT FILE NO.: 00-CV-192059

DATE: 20160825

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: August 25, 2016