Fontaine v. Canada (Attorney General), 2017 ONSC 5174

CITATION: Fontaine v. Canada (Attorney General), 2017 ONSC 5174

COURT FILE NO.: 00-CV-192059

DATE:20170830

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:

▪ Fay K. Brunning, for the Requestors, Angela Shisheesh and IAP Claimant C-14114

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

▪ Geoffrey Adair, Q.C., for Wallbridge, Wallbridge

▪ David Schulze, for Independent Counsel

▪ Stuart Wuttke, for the Assembly of First Nations

▪ Joanna Birenbaum, for National Centre for Truth and Reconciliation

HEARD IN WRITING

PERELL, J.

DIRECTION – REASONS FOR DECISION

A. Introduction and Overview

[1] I make this direction in my role as a Supervising Judge under the Implementation Orders made by the nine provincial and territorial superior courts (collectively, the “Courts”) that approved and are tasked with overseeing the ongoing administration of the Indian Residential Schools Settlement Agreement (“IRSSA”).

[2] This direction arises in connection with Requests for Directions (“RFDs”) brought by Angela Shisheesh and a person I shall refer to as C-14114 (collectively, the “Requestors”), and more particularly, the direction concerns hearings that I directed to be heard on September 22, 2017 to determine whether either Requestor has standing to bring their respective RFDs.

[3] Ms. Brunning is counsel for the Requestors, and Court Counsel brought to my attention Ms. Brunning’s letter to him, dated August 18, 2017. In it, Ms. Brunning sought an endorsement, i.e., a formal direction from the court, memorializing the court’s directions with respect to the evidence and procedure for the hearing scheduled for September 22, 2017.

[4] Ms. Brunning asked that the direction address three matters; namely: (1) whether the Requestors are required to establish that they have standing to bring their respective RFDs; (2) whether Canada is required to file evidence in connection with either RFD; and (3) whether the court would grant all parties a costs immunity for the hearing on September 22, 2017.

[5] Court Counsel also brought to my attention the extensive Request to Admit that Ms. Brunning served on Canada electronically in conjunction with her letter to Court Counsel of August 18, 2017.[^1]

[6] Through Court Counsel, I invited submissions from the parties served with the RFDs as to whether I should make the endorsement sought by Ms. Brunning and also as to whether the Request to Admit provisions (i.e., Rule 51.02) of the Ontario Rules of Civil Procedure are part of the Request for Direction process created by the Court Administration Protocol appended to the Implementation Orders made by the nine superior courts.

[7] Canada, the law firm of Wallbridge, Wallbridge, Independent Counsel, the Assembly of First Nations, and the National Centre for Truth and Reconciliation (“NCTR”) provided written submissions. On the Requestors’ behalf, Ms. Brunning provided further submissions in reply to those of Canada and Wallbridge, Wallbridge.

[8] Having considered those submissions, I order as follows: (1) At the hearing scheduled for September 22, 2017, the Requestors are required to establish that they have standing to bring their respective RFDs; (2) Canada is not required to file evidence in connection with either RFD, nor is it required to respond to the Request to Admit; and (3) The matter of costs in connection with the hearing scheduled for September 22, 2017 is reserved to the court’s discretion.

[9] My reasons for giving this direction follow.

B. Factual Background

[10] Both of the Requestors attended St. Anne’s Indian Residential School (“St. Anne’s IRS”) in Fort Albany, Ontario.

[11] C-14114 is a claimant under the Independent Assessment Process (“IAP”) established by the IRSSA to compensate those who suffered sexual and other abuse at Indian Residential Schools, including St. Anne’s IRS.

[12] C-14114 has brought an RFD requesting the following relief:

Claimant C-14114 seeks directions of this Court under the IRS SA, and an Order:

a. That the original decision in IAP Claim C-14114 dated October 7, 2013, be set aside for breach of procedural fairness by Canada, and that this IAP claim shall be returned to an adjudicator of original jurisdiction on the revised St. Anne's disclosure pursuant to paragraph 2(b) hereafter; re-hearing to be conducted consistent with Re-Review Decision Q-10233 dated March 17, 2016, to revisit only the two missing elements pertaining to knowledge/lack of reasonable steps by persons in authority;

b. That Canada file a revised narrative, POI report, and source documents about sexual and physical abuse of children at St. Anne's IRS, including transcripts from civil proceedings, in accordance with the Orders of Justice Perell dated January 14, 2014 and June 23, 2015 ("Revised Disclosure"); Revised Disclosure to be filed within 10 days on EDI with the IRS Adjudication Secretariat for re-hearing adjudicator and claimant for IAP Claim C-14114;

c. The Revised Disclosure is to be certified prior to the re-hearing, under a Certificate of Completion of Disclosure from Canada, certified to this Honourable Court by the lawyer representing Canada in this RFD or by the lawyer representing Canada in the re-hearing of IAP Claim C-14114; if the productions by Canada might not comply with the Orders of Justice Perell dated January 14, 2014 and June 23, 2015, for the Court to take necessary steps through its agents to enforce those Orders against Canada;

d. To seal from public disclosure, the IAP materials, transcripts and documents in this Application record which are IAP confidential, on terms that allow the IAP filings to be reviewed by Justice Perell as Administrative Judge of the IRSSA, the Chief Adjudicator, Canada and Claimant C-14114, for the purpose of this RFD; and

e. That the Chief Adjudicator be granted necessary authority and powers to compel Canada (And, if necessary, the Catholic Church entities that operated St. Anne's IRS, whose lawyers also had all the Revised Disclosure, prior to the IRSSA.) pursuant to Appendix VIII, to make admissions as to knowledge of and/or lack of reasonable steps by employees and leaders of St. Anne's IRS to stop sexual abuse at St. Anne's IRS, from the evidence recorded from St. Anne's former students in completed examinations for discovery, signed witness statements to the OPP, and/or DR decisions, and that such additional SOS admissions shall be posted on the IAP secure data base with appropriate notice by Canada to all St. Anne's IAP claimants whose SOS claims may have been adversely impacted by previous non-disclosure;

f. To adjudicate the legal issue of first instance being taken by Canada, that none of the new documents (OPP signed witness statements and/or transcripts of criminal proceedings and/or civil proceedings) are admissible for IAP Claimant C-14114 to corroborate her IAP claim; Claimant C-14114 admits that she was not the author of any OPP statement and she did not testify in any of the criminal or civil proceedings about abuse at St. Anne's IRS, prior to the IAP process;

g. To direct that Canada shall pay reasonable costs of this RFD and to direct that if Claimant C-14114 is successful in proving her IAP claim, that Canada shall increase its contribution towards legal fees to an amount equal to 30% of the final award, plus applicable GST and taxes on that amount (as per paragraph 17 of Implementation Order dated March 8, 2007);

h. To direct any other terms necessary and consistent with the IAP model, to prevent a possible miscarriage of justice to Claimant C-14114 in this RFD and/or IAP re-hearing process, arising from the non-disclosure of documentation about sexual and physical abuse at St. Anne's IRS, which terms this Honourable Court deems just.

[13] Ms. Shisheesh was a plaintiff in civil proceedings before this court in Cochrane, Ontario, against the Government of Canada (“Canada”) in connection with harms suffered at St. Anne’s IRS. In those proceedings, which were independent of the IRSSA, she was represented by the laws firm of Wallbridge, Wallbridge which acted for a number of other former students of St. Anne’s IRS in what I will refer to as the “Cochrane civil actions”. Her action was settled before the IRSSA was signed.

[14] Ms. Shisheesh is to testify as a witness in C-14114’s ongoing IAP claim. In Ms. Shisheesh’s RFD, she requests the following relief:

Angela Shisheesh seeks directions of this Court under the IRSSA, and an Order:

a. That Canada shall file with the National Centre for Truth and Reconciliation (NCTR) under the IRSSA, Schedule N, a copy of every document in the possession of Canada pertaining to the Civil Claim of Angela Shisheesh, except those documents over which solicitor and client privilege are claimed and except the transcripts of the examinations for discovery. All non-privileged and solicitor and client privileged documents shall be listed by Canada to the NCTR and to Angela Shisheesh and certified as complete by a lawyer in the Department of Justice, acting under the authority of the Attorney General of Canada;

b. That Angela Shisheesh is then entitled, under the provisions of the IRSSA, Schedule N, to be given appropriate notice from the NCTR of her exclusive right to consent to her transcripts of examinations for discovery to be archived with the NCTR; the NCTR shall provide notice that ensures the consent of Angela Shisheesh is express, informed, voluntary and written; the NCTR will be granted the power necessary to compel Canada and/or the church entities that operated St. Anne's IRS to file these transcripts with the NCTR without interference, penalty or any consequence to Angela Shisheesh by those defendants or by any other person or party; the NCTR may access this Court for enforcement of the rights of Angela Shisheesh hereunder, including possible penalties for Contempt of Court. In the event that Angela Shisheesh should pre-decease receipt of the notice from the NCTR, Angela Shisheesh seeks that the Executor of her Estate be entitled to make the decision whether to file the transcripts with the NCTR.

c. That Angela Shisheesh be further entitled, under the provisions of the IRSSA, Schedule N, to be given appropriate notice from the NCTR of her exclusive right to consent to the documents pertaining to the settlement compensation that Angela Shisheesh accepted and the release she signed to conclude the Civil Claim of Angela Shisheesh ("Documents that Concluded the Civil Claim"), to be archived with the NCTR; the NCTR shall provide notice that ensures the consent of Angela Shisheesh is express, informed, voluntary and written; the NCTR will be granted the power necessary to compel Canada and/or the church entities that operated St. Anne's IRS to file these Documents that Concluded the Civil Claim with the NCTR without interference, penalty or any consequence to Angela Shisheesh by those defendants or by any other person or privy; the NCTR may access this Court for enforcement of the rights of Angela Shisheesh hereunder, including possible penalties for Contempt of Court. In the event that Angela Shisheesh should pre-decease receipt of the notice from the NCTR, Angela Shisheesh seeks that the Executor of her Estate be entitled to make the decision whether to file the Documents that Concluded the Civil Claim with the NCTR.

d. The details of abuse and knowledge of abuse and/or lack of reasonable steps by adult supervisors contained in the transcripts of examination for discovery of Angela Shisheesh shall also be filed with the IRSAS Secretariat for the IAP process, redacted of her name and identifying/personal details, in accordance with Appendix VIII. Those excerpts of the discovery transcripts shall be disclosed in the narrative and appropriate POI reports for IAP hearing and review processes by Canada, in accordance with Appendix VIII of the IAP model, and for possible use by adjudicators and claimants under the IAP model.

e. That due to the fact that settlement funds were paid by Canada and/or the Catholic Church entities to Angela Shisheesh, in the Ontario Superior Court of Justice under the Rules of Civil Procedure, the Attorney General of Canada is hereafter directed:

(i) to admit the truth of the allegations in the civil pleadings and/or in the evidence contained in transcripts of examinations for discovery of the Civil Action of Angela Shisheesh, in any other IAP Claim arising from abuse of children at St. Anne's IRS in which Angela Shisheesh's evidence could be relevant; and

(ii) to make admissions, as per the last paragraph of IRS SA, Schedule D, Appendix VIII, regarding the knowledge of adult supervisors at St. Anne's about the sexual abuse and lack of reasonable steps by adult employees, as per the sworn testimony of Angela Shisheesh. The Attorney General of Canada and her lawyer agents shall be responsible to make these admissions, based upon the transcript of completed examinations for discovery and settlement paid thereupon, and in accordance with professional Rules of Conduct governing lawyers in Ontario. Due to non-disclosure and no admissions to date, the Attorney General of Canada shall not be constrained in any way by the church entities that operated St. Anne's or their agents/lawyers, in making such admissions in the IAP.

f. That the rights granted to Angela Shisheesh in paragraphs 2(a), 2(b), 2(c), 2(d) and 2(e) above, will apply to all former students of St. Anne's IRS, who were plaintiffs in civil actions issued out of the ONSC in Cochrane, Ontario and whose civil action was concluded prior to the IRS SA being signed.

g. That the rights granted to Angela Shisheesh in paragraphs 2(a), 2(b), 2(c), 2(d) and 2(e) above will apply to every other IRSSA class member/claimant, who has issued a civil action anywhere in Canada against the Government of Canada and/or against the church entity or entities that operated an IRS in Canada and from whom the defendants rely upon a signed release, to have stopped an IAP claim under the IRSSA, Schedule D, Appendix XI.

h. The provision in the IAP model that permits non-lawyers to represent Canada in IAP proceedings is amended to provide that lawyers acting as agents of Attorney General of Canada must be involved in the IAP process to make necessary admissions on the evidence contained transcripts of IRSSA class members who were paid compensation in civil actions prior to the IRSSA being signed.

i. That Angela Shisheesh is granted leave by this Court, to have an agent appointed by this Court to assess the legal fees that she paid to Wall bridge & Wall bridge, when she accepted the settlement offer of the defendants for the child abuse; Angela Shisheesh was misled to believe she was part of a class action by St. Anne's former students so her legal rights under the Class Proceedings Act should now be enforced by the Court. This same option should be available to all plaintiffs in the Cochrane civil actions brought by Wallbridge & Wallbridge.

j. That Canada file within 30 days, a further revised narrative, POI reports and source documents about sexual and physical abuse of children at St. Anne's IRS, to include excerpts from transcripts from civil proceedings (redacted as to the name and identity of the plaintiff) in which the plaintiff/IRSSA class member was paid any compensation by Canada and/or the church entities, in accordance with the Orders of Justice Perell dated January 14, 2014 and dated June 23, 2015 ("Further Revised Disclosure");

k. That the Chief Adjudicator be granted necessary authority and powers to compel Canada (And, if necessary, the Catholic Church entities that operated St. Anne's IRS, whose lawyers also had all the Revised Disclosure, prior to the IRS SA.) to comply with all these St. Anne's IRS disclosure Orders for the IAP, and powers to penalized Canada for failure to do so;

1. That the Chief Adjudicator be granted the power to re-open St. Anne's IAP claims adversely impacted by Canada's failure to disclose and/or failure to make admissions on completed examinations for discovery and signed witness statements recorded by the Ontario Provincial Police. Re-opened IAP claims shall be directly referred to an IAP adjudicator of original jurisdiction on the revised disclosure and/or expanded admissions. Canada and the church defendants are requested to be prohibited from seeking Review or Re-Review of the Chief Adjudicator's decision to re-open an lAP claim, in consequence of the non-disclosure and/or non-admissions.

m. On a preliminary basis, that Canada be compelled to file all material evidence and its response to this RFD, forthwith;

n. If this RFD is opposed, that Canada shall pay reasonable costs of this RFD;

o. To direct any other terms necessary and consistent with the IRSSA to fulfill the Court's responsibility to enforce the IRSSA on behalf of IRSSA class members against the State.

C. Summary of Submissions

Requestors

[15] In addressing the standing issues, the Requestors’ counsel, Ms. Brunning submitted that:

a. The issue of standing is not well-established in relation to individual class members. Further, there are genuine legal issues to be tried.

b. The court needs the example and evidence of IRSSA class members to understand how these legal issues impact their individual situations. The IRSSA is not private litigation in which these class members are responsible to prosecute their own actions. The issues these class members raise could pertain to many other IRSSA class members.

c. Although the court has accepted that settlement privilege applies to the examination for discovery transcripts in the Cochrane civil actions involving St. Anne’s IRS,[^2] that determination was made solely on the basis of written submissions in an RFD brought by IAP Claimant H-15019. In that RFD, Canada filed no evidence to support the position that settlement privilege applied and that in determining the issue, the court failed to consider the impact of either the last paragraph of Appendix VIII or the IRSSA’s entire agreement clause.[^3]

d. Even if Canada can decline to produce examination for discovery transcripts on the basis of settlement privilege, that does not eliminate the requirement to make admissions based on those transcripts.

e. At the very least, the civil pleadings in the Cochrane civil actions should have been produced as mandatory documents within the confidential IAP process, under Appendix VIII of the IRSSA. A document need merely mention sexual abuse for excerpts of that document to be produced by Canada for the purposes of the IAP. Under paragraph 5 of Appendix VIII, details of allegations about sexual abuse must be recorded in the narrative for each IRS. Sexual and/or physical abuse allegations must be outlined in each POI report.

f. On the basis of the examination for discovery transcripts, admissions must be made by Canada that adult supervisors knew or ought to have known about that kind of abuse and/or failed to take reasonable steps. That information, redacted to protect personal information of other former student, must be provided by Canada under Appendix VIII. SOS admissions, if made, would be also covered by IAP confidentiality. If made, such admissions would obviate the need for Ms. Shisheesh to testify at a hearing into an IAP claim brought by another former student of St. Anne’s IRS.

[16] Relying on Chief Adjudicator Shapiro’s re-review decision in relation to C-14114’s IAP claim,[^4] Ms. Brunning submitted that the Department of Justice could be in possession of transcripts in up to 10,000 civil cases involving Indian Residential Schools that predated the IRSSA, but that those transcripts have not been made available to the IAP and further, that no admissions have been made in connection with them about the requisite knowledge on the part of staff members to prove Canada’s liability in student on student (“SOS”) abuse cases.

[17] Consequently, Ms. Brunning submitted, Canada should be required to file evidence in response to the RFDs. She added that admissions from Canada are contemplated under the terms and spirit of the IRSSA, and must be made in relation to completed examinations for discovery, in accordance with the last paragraph of Appendix VIII of Schedule D of the IRSSA. In addition, under Appendix X, section 3, if documents are relied upon from the document collection by adjudicators or claimants, Canada should not contest a civil pleading, if it is in possession of transcripts of examinations for discovery testing that plaintiff’s version of events and if a settlement was paid to that plaintiff in exchange for a release settling the civil action. The only alternative, she submitted, would be an affidavit from counsel from the Department of Justice, who has direct knowledge of, access to and control over documents arising from the Cochrane civil actions.

[18] Ms. Brunning pointed out that neither the Chief Adjudicator nor Wallbridge, Wallbridge has brought forward the issue as to whether settlement privilege attaches to the examination for discovery transcripts in the Cochrane civil actions, or whether Canada is nonetheless required to make admissions on the basis of those transcripts. She submitted that Wallbridge, Wallbridge should have brought an RFD to determine this issue “a long time ago”.

[19] It was Ms. Brunning’s submission that in the context of these RFDs, the IRSSA class members are seeking disclosure of facts from Canada, which could have filed its own RFD at the outset of the IRSSA’s administration in 2007 with evidence, to determine if earlier agreements or understandings establishing settlement privilege would still stand.

[20] Ms. Brunning submitted that Ms. Shisheesh’s affidavit evidence contradicts Canada’s positions – taken in other proceedings[^5] – about settlement privilege and expedited discoveries. It was her submission that Canada should be required to adduce evidence in support of its contention that settlement privilege applies.

[21] Ms. Brunning submitted that Ms. Shisheesh is not aware of agreeing to settlement privilege, nor did she agree to what Ms. Brunning characterized as giving Canada control over her story of abuse. She became an IRSSA class member upon the signing of the IRSSA. Ms. Brunning noted that in paragraph 110 of Fontaine v. Canada (Attorney General), 2014 ONSC 283, the documents from Ms. Shisheesh’s civil action were listed as being in the possession of the Ontario Provincial Police.

[22] In her RFD, Ms. Shisheesh has taken the additional step of requesting that Wallbridge, Wallbridge provide evidence about Canada’s claim to settlement privilege over the transcript of her examination for discovery and those of others in the Cochrane civil actions. Ms. Brunning notes that Wallbridge, Wallbridge has not responded to that request.

[23] Ms. Brunning indicated that she served the Request to Admit because Canada has never filed any evidence to support its position that the examinations for discovery in the Cochrane actions were conducted on an expedited basis for settlement purposes only and therefore that settlement privilege applies to the transcripts. Settlement privilege formed the basis for Canada’s positions to oppose production of excerpts of those transcripts in RFD for Claimant H-15019 and in opposing the Court’s jurisdiction in the RFD brought by Mr. Metatawabin and Claimant K-10106. Claimant H-15019 sought production of specified transcripts, because Canada’s position in written submissions December 2016 was that versions of events reflected in the transcripts were “untested” or that the plaintiffs from the Cochrane civil actions have to give viva voce evidence in the IAP before the civil pleadings can be accepted as true.

[24] It was Ms. Brunning’s submission that the IAP is not a complete code and that recourse can be had to the Rules of Civil Procedure provided the Rules are not inconsistent with the procedures mandated by the IRSSA and the Implementation Orders (which incorporate the Court Administration Protocol). In this respect, Ms. Brunning referred to Fontaine v. Canada (Attorney General), 2014 ONSC 283,[^6] paras. 166 and 200 to 207. Ms. Brunning further submitted that the RFD process lacks rules and that the law of Ontario governs the IRSSA.

[25] With respect to the matter of a costs waiver, on one hand, Ms. Brunning submitted that for a class member to be liable to pay costs, an express provision in the IRSSA would be required. On the other, she submitted that granting costs immunity is essential to the Requestors’ ability to access the court and enforce the IRSSA’s terms.

[26] Ms. Brunning submitted that Wallbridge, Wallbridge should not be permitted to threaten to seek costs and create litigation chill over its former clients and should be discouraged from threatening to seek costs against Ms. Brunning personally for bringing RFDs that Wallbridge, Wallbridge should have brought itself.

[27] Ms. Brunning informed the court that her clients will abandon their RFDs if they are at risk of paying costs. However, she submitted, the historical records will confirm that the Requestors put these issues before the court, but could not access it due to litigation chill. Further, Ms. Brunning advised that she will not continue to represent the Requestors if doing so subjects her to any personal financial risk.

Canada

[28] On Canada’s behalf, Ms. Coughlan accepted that standing is an issue requiring determination by the court, and submitted that in light of the decision in Fontaine v. Canada (Attorney General), 2017 ONSC 2487, it is appropriate for an inquiry to be made into the Requestors’ standing as a preliminary issue. The test governing the exercise of the court’s discretion is set out in the decision of Brown J. in Fontaine v. Canada (Attorney General), 2015 BCSC 1386.[^7]

[29] Ms. Coughlan submitted that Canada should not be required to file evidence, but should be permitted to do so at its own election, as is the case in litigation generally. Pointing to the fact that no party responding to an RFD has ever been required to file evidence, Ms. Coughlan submitted that it can be taken as a general rule that a party responding to an RFD has no obligation to adduce evidence of any sort.

[30] On the issue concerning the applicability of Rule 51.02, the Request to Admit rule, to the process for determining RFDs, Canada took the position that the RFD process is a sui generis creature of the IRSSA, and that this unique process does not lend itself to a fulsome application of the procedural rules of the nine Courts.

[31] It was Ms. Coughlan’s submission that the nine Courts intended that a consistent process be followed by each of them for determination of RFDs and that it would be incongruous for the rules of each of the courts to apply. Ms. Coughlan further submitted that in any event, Rule 51.02 cannot apply because it applies to a “proceeding”, and that term is defined in Subrule 1.03(1) as either an action or an application.

[32] On behalf of Canada it was submitted that costs immunity should not be granted because the applicable law (including the law of standing) is clear, having regard to the decision in Fontaine v. Canada (Attorney General), 2017 ONSC 2487, and costs immunity would serve no just purpose.

Wallbridge, Wallbridge

[33] On behalf of Wallbridge, Wallbridge, Mr. Adair confined his submissions to the issue concerning costs immunity.

[34] Mr. Adair pointed out that through the RFD process, Ms. Brunning has made allegations of serious professional misconduct on the part of his client have been made by the Requestors and other clients. It would be unfair, he submitted, to allow the allegations to be made in the context of the Requestors’ RFDs without subjecting Ms. Brunning and the Requestors to the prospect of costs consequences if those allegations are proven to be baseless.

[35] Mr. Adair took the position that the more appropriate course would be to either dismiss the request for costs immunity or to address the matter of costs via full submissions on all of the evidence on the RFD’s return date.

Independent Counsel

[36] In submissions made on behalf of Independent Counsel, Mr. Schulze addressed each of the four issues identified by Court Counsel.

[37] Mr. Schulze submitted that both Requestors are “Class Members” within the meaning given to that term by section 1.01 the IRSSA, and that each of them therefore has prima facie standing to bring an RFD. Further,

a. While Ms. Shisheesh was apparently precluded from participating in the IAP as a result of a settlement with Canada that predated the IRSSA, she was an Eligible CEP Recipient.[^8] However, Independent Counsel took no position as to whether Ms. Shisheesh has standing to bring the RFD she has brought.

b. C-14114 has standing to bring an RFD, because she has a claim on which there has not been a final ruling and concerning which she alleges that directions from the court are required.

[38] Mr. Schulze said that Independent Counsel accepted that Canada is not ordinarily required to file evidence in connection with an RFD concerning an IAP adjudicator’s decision, but Mr. Schulze submitted that different considerations would apply to a case in which no adjudicator is or was involved.

[39] Mr. Schulze submitted that arguably, Canada is under an obligation to file evidence with the Court if it becomes aware of evidence that pursuant to Schedule D to the IRSSA should clearly have been before an adjudicator whose decision is the subject of an RFD, but was not before the adjudicator. However, since the extent of disclosure appears to be precisely the issue at stake in C-14114’s RFD, such an obligation could not be decided here without deciding the RFD itself.

[40] Mr. Schulze said that Independent Counsel took the position that Rule 51.02 is part of the pre-trial process and the Request to Admit provisions are therefore not part of the RFD process in a class action that is the subject of a settlement agreement. Nevertheless, he submitted that the court had the discretion to allow parties to adopt a procedure analogous to requests to admit, either under Rule 37.15(1.2) if an RFD is seen as a form of motion, or else under s. 25(3)(b) of the Class Proceedings Act, 1992.

[41] Mr. Schulze said that Independent Counsel took no position on whether the court should in fact exercise its discretion to order that the parties adopt such a procedure for the respective RFDs now pending before the court.

[42] Mr. Schulze for Independent Counsel submitted that requests for costs immunity must be assessed on similar criteria to applications for advance costs. He noted that in the context of a request for advance costs to pursue an application under Article 12 of the IRSSA, the court held that “the predominate purpose of both class proceedings and advance costs awards is access to justice”: Fontaine v. Canada (Attorney General), 2015 ONSC 7007, para. 54. Mr. Schulze submitted that therefore, the court should be extremely reticent to award costs against any individual class member bringing an RFD and should, in appropriate cases, award adverse costs immunity, as it did in Fontaine v. Canada (Attorney General), 2016 ONSC 7913.

[43] Applying the criterial set out in Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316, para. 153,[^9] Independent Counsel took the position that the proper functioning of the IRSSA in general and the IAP in particular are prima facie in the public interest. The potential impact of an adverse costs award on Canada is slight or even non-existent, since its resources are vastly superior to those of any class member. While the record does not appear to contain any evidence as to the Requestors’ financial circumstances, Independent Counsel presumed that they are inadequate for the complexity of litigation that an RFD under the IRSSA generally represents.

[44] Mr. Schulze for Independent Counsel noted that the merits of C-14114’s RFD appears to depend upon the result of H-15019’s pending appeal from Fontaine v. Canada (Attorney General), 2017 ONSC 2487, currently before the Ontario Court of Appeal. Independent Counsel took no position as to the prima facie merit of Ms. Shisheesh’s RFD.

[45] Assembly of First Nations

On behalf of the Assembly of First Nations Mr. Wuttke submitted that the issue of settlement privilege over transcripts and other documents relating to past civil proceedings and the obligations of Canada under Appendix VIII of the IAP is a genuine legal issue that is in need of judicial direction.

National Centre for Truth and Reconciliation

[46] The NCTR submitted that the RFD brought by Ms. Shisheesh seeks an order that directly impacts the NCTR and echoed the AFN’s position that the question of the scope and application of settlement privilege is an important question.

[47] In particular, the NCRT submitted that the NCTR and survivors would benefit from clarification that settlement privilege does not prevent Ms. Shisheesh or any other survivor who gave evidence at an examination for discovery, from obtaining a copy of that transcript and telling their own story with it, including by archiving the transcript with the NCTR if that is their choice.

D. Analysis

Whether the Requestors’ standing should be determined as a preliminary matter

[48] One needs only read the requests for relief in C-14114’s RFD and Ms. Shisheesh’s RFD to immediately realize that there are serious issues about whether they have standing and whether the court has the jurisdiction under the IRSSA to grant any or any portion of the relief being requested.

[49] I conclude that the court should determine the Requestors’ standing to seek the various forms of relief set out in their RFDs and the related issue as to the court’s jurisdiction to grant that relief.

[50] The Requestors both fall within the definition of “Class Member” that is provided by section 1.01 of the IRSSA; however, whether this entails that they have standing and whether the court has the jurisdiction or authority to grant the relief requested is a matter that needs to be decided before engaging on what would be a massive RFD.

[51] The Court Administration Protocol calls for an informal and efficient, streamlined process where – as here – “court orders, directions or consideration” are sought. In their submissions, none of the parties took the position that the Requestors’ standing was not an issue requiring a determination by the court. Moreover, it was accepted that a serious issue is raised in these two RFDs.[^10] No one opposed determining these issues as preliminary matters and it makes eminently good sense to do so.

Whether Canada should be required to file evidence

[52] I accept the submission made on Canada’s behalf that it should not be required to file evidence, but should instead be permitted to do so at its own election, as is the case in litigation generally. That has been the consistent approach of Supervising Judges who have heard and determined the approximately 100 RFDs heard to date.

[53] It can be taken as a general rule that a party responding to an RFD has no obligation to adduce evidence. It can also be taken as a general rule that a party responding to an RFD cannot be summonsed as a witness without leave of the court hearing the RFD.

Whether Canada should be required to respond to the Request to Admit

[54] The Requestors have submitted that section 18.03 of the IRSSA (Applicable Law) renders the Ontario Rules of Civil Procedure – and the Request to Admit provisions (Rule 51.02) – applicable to the process for RFDs. Section 18.03 provides that the IRSSA will be governed by the law of Ontario.

[55] However, as I interpret that provision, it entails that the IRSSA will itself be construed in accordance with Ontario law. It does not import the wholesale application of procedural provisions such as the Rules of Civil Procedure.

[56] In their Implementation Orders, the Courts did not adopt the Ontario Rules. Instead, they opted for the informal and expeditious process described below. Given that, it would be incongruous to require the eight other Supervising Judges to follow the Ontario Rules.

[57] The Requestors also rely on my decision in Fontaine v. Canada (Attorney General), 2014 ONSC 283 as authority for the proposition that provided they are not inconsistent with the procedures mandated by the IRSSA and the Implementation Orders, the Rules of Civil Procedure can inform the process for RFDs. However, I have elsewhere pointed out that what was said in that case must now be interpreted in light of the Court of Appeal’s decision in Fontaine v. Canada (Attorney General), 2017 ONCA 26.[^11]

[58] Moreover, I accept Canada’s submission that the RFD process created under the Court Administration Protocol is a unique process that does not lend itself to the fulsome application of the forum superior court’s rules of procedure, including Requests to Admit. Correspondingly, as Independent Counsel has submitted, Rule 51.02 is part of the pre-trial process and the Request to Admit provisions are therefore not part of the RFD process in a class action that is the subject of a settlement agreement.

[59] As noted above, the Court Administration Protocol describes the procedure for RFDs as a “streamlined process for addressing all matters that require court orders, directions or consideration during the course of the (IRSSA’s) administration”. Presciently, the Courts reserved to themselves a broad discretion as to the manner in which RFDs would be processed. My experience over the last four years as a Supervising Judge has reinforced my view that flexibility and discretion are essential to the timely, efficient and fair determination of RFDs.

[60] Although it may be possible for parties to agree that RFD be determined through a process that includes a procedure analogous to requests to admit, that has not happened here, and in the absence of agreement, it would be inappropriate to impose an obligation to respond to a Request to Admit.

Whether costs immunity should be granted in relation to the hearing regarding standing

[61] Without in any way prejudging whether costs will be awarded to a successful party as a result of the hearing on September 22, I decline to grant costs immunity at this stage.

[62] An order for costs immunity is and must remain exceptional. It should only be made on a principled basis, and must take into account the public interest, the interests of the costs immunity applicant, and the interests of other participants in the process.

[63] I adopt the following discussion of the governing considerations, as set out in Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 at paras. 151 - 153:

151. In considering what an appropriate case might be in Ontario for such an award, Herman J. suggested that the criteria that the Supreme Court of Canada has established for advance or interim costs award may be useful. In Okanagan, the Court set out the following conditions at para. 40:

(a) The party seeking interim costs genuinely cannot afford to pay for the litigation and no other realistic option exists for bringing the issues to trial;

(b) The claim is prima facie meritorious; it would be contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means; and

(c) The issues are of public importance and have not been resolved in previous cases.

152. These conditions were further refined in Little Sisters, at paras. 39 to 44, as follows:

(a) The injustice that would arise if the application is not granted must relate to both the individual applicant and to the public. This does not mean, however, that every case of interest to the public will satisfy the test.

(b) An advance costs award must be an exceptional measure. The applicant must be able to demonstrate attempts to obtain private funding and, if not impecunious, must commit to making a contribution. The court should also consider different kinds of costs mechanisms.

(c) There would be no injustice if the issue could be settled or the public interest satisfied without an advance costs award.

(d) If an advance costs order is made, the litigant must relinquish some control over how the litigation proceeds.

153. The criteria in the U.K., as well as Nova Scotia and Newfoundland, where protective costs award are provided for in the rules of court, suggest other factors to be taken into account as well:

(a) Whether the applicant’s financial circumstances are such that the applicant would probably not proceed absent such an order;

(b) The extent to which the public has an interest in the issues being litigated; and

(c) The potential impact of such an award on the other parties. [Farlow, at para. 95-96.]

[64] Moreover, a grant of costs immunity has disadvantages. Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements. By announcing in advance that it is immunizing one or more of the parties from the prospect of an adverse costs award, the court loses some considerable measure of the ability to control its own process and to advance the purposes of a costs award.

[65] I accept that that the proper functioning of the IRSSA in general and the IAP in particular are prima facie in the public interest. However, the financial impact on others, including Wallbridge, Wallbridge, should not be ignored. Applying the other Lockridge criteria, I conclude that on balance, the circumstances here do not justify the exceptional step of granting costs immunity.

[66] It is true that costs immunity was granted when the standing and jurisdiction issues were scheduled for hearing in connection with the Metatawabin et al. RFD; see Fontaine v. Canada (Attorney General), 2016 ONSC 7913. The circumstances of those RFDs were genuinely exceptional.

[67] Those RFDs were the first RFDs to come before me following the Court of Appeal’s decision in Fontaine v. Canada (Attorney General), 2017 ONCA 26.[^12] The scope of the Courts’ remedial jurisdiction had to be clarified in light of the Court of Appeal’s characterization of the IAP Model as a complete code. However, the court’s jurisdiction has been substantially clarified (see Fontaine v. Canada (Attorney General), 2017 ONSC 2487), and in my view the issue is no longer so novel as to warrant an order for costs immunity.

[68] In concluding that the circumstances of these two RFDs do not justify the exceptional grant of costs immunity, I have taken into account the fact that it is unlikely but not impossible that costs will be awarded against either of the Requestors.

[69] As Mr. Schulze observed in his submissions, the court should be extremely reticent to award costs against an individual class member bringing an RFD. In fact, I am unaware of costs being awarded against an IRSSA class member in any of the approximately 100 RFDs that Supervising Judges have heard to date. On the other hand, the law is that costs waivers are rare and the court should not have its hands tied when administering justice.

E. Direction

[70] Consequently, I direct as follows:

1. At the oral hearing scheduled for September 22, 2017, the Requestors are required to establish that they have standing to bring their respective RFDs;

2. Canada is not required to file evidence in connection with either RFD, nor is it required to respond to the Request to Admit; and

3. The matter of costs in connection with the hearing scheduled for September 22, 2017 is reserved to the court’s discretion.

Perell, J.

Released: August 30, 2017

CITATION: Fontaine v. Canada (Attorney General), 2017 ONSC 5174

COURT FILE NO.: 00-CV-192059

DATE: 20170830

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

DIRECTION ________________________________________

Perell, J.

Released: August 30, 2017

[^1]: In the Request to Admit (Form 51A under Rule 51.02 of the Ontario Rules of Civil Procedure), Canada is asked to admit the truth of what is asserted in 96 numbered paragraphs. Consistent with the form prescribed by the Rules, the Request to Admit contains the following statement: YOU MUST RESPOND TO THIS REQUEST by serving a response to request to admit in Form 51B prescribed by the Rules of Civil Procedure WITHIN TWENTY DAYS after this request is served on you. If you fail to do so, you will be deemed to admit, for the purposes of this proceeding only, the truth of the facts and the authenticity of the documents set out above.

[^2]: Fontaine v. Canada (Attorney General), 2017 ONSC 2487.

[^3]: IRSSA, section 18.06.

[^4]: Released August 8, 2017.

[^5]: Fontaine v. Canada (Attorney General), 2017 ONSC 2487.

[^6]: Referred to in Fontaine v. Canada (Attorney General), 2017 ONSC 2487 as “St. Anne’s RFD-1”.

[^7]: At para. 29. On the basis of this test, adopted in Fontaine v. Canada (Attorney General), 2017 ONSC 2487 at para. 150, the entity seeking standing must satisfy the court of the following: (a) there is a serious issue to be tried; (b) the entity is directly affected or has a genuine interest in the issues raised; and (c) there is no other reasonable and effective manner in which the issue can be brought before the court.

[^8]: Section 1.01 of the IRSSA defines “Eligible CEP Recipient” as follows: “Eligible CEP Recipient” means any former Indian Residential School student who resided at any Indian Residential School prior to December 31, 1997 and who was alive on May 30, 2005 and who does not opt out, or is not deemed to have opted out of the Class Actions during the Opt-Out 13 Periods or is a Cloud Student Class Member.

[^9]: Those criteria are as follows: (a) Whether the applicant’s financial circumstances are such that the applicant would probably not proceed absent such an order; (b) The extent to which the public has an interest in the issues being litigated; and (c) The potential impact of such an award on the other parties. In addition, the Court may consider whether “the claim is prima facie meritorious” and whether “it would be contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means”: Lockridge, sub-para. 151(b).

[^10]: I note that in Fontaine v. Canada (Attorney General), 2017 ONSC 2487, I accepted that the January 14, 2014 Order did not extend to transcripts of “discoveries designed for settlement purposes” (paras 116-118) and that Canada had met the evidentiary burden of showing that the discovery transcripts were communications with a view to reconciliation or settlement (paras. 124-125).

[^11]: Fontaine v. Canada (Attorney General), 2017 ONSC 2487 at para. 75. Fontaine v. Canada (Attorney General), 2014 ONSC 283 is referred to there as “my 2014 decision in St. Anne’s RFD-1”.

[^12]: Although the Court of Appeal’s decision was released on January 16, 2017, the outcome of the appeal was announced at the conclusion of argument on December 6, 2016.