COURT FILE NO.: 00-CV-192059 DATE: 20180704

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 MONTR é AL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARIT é 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 IMMACULEE 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 ARCHI éPISCOPALE 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

BEFORE: PERELL J.

COUNSEL: Margaret Waddell for Angela Shisheesh Catherine A. Coughlan and Brent Thompson for the Attorney General of Canada Stuart Wuttke and Jeremy Kolodziej for the Assembly of First Nations

HEARD: June 22, 2018

REASONS FOR DECISION

A. Introduction

[1] Angela Shisheesh, who was a student at an Indian Residential School (“IRS”) and who is a Class Member under the Indian Residential School Settlement Agreement (“IRSSA”), brought a Request for Directions (“RFD”) for the enforcement of the IRSSA. I directed that there be a preliminary jurisdiction motion to determine Ms. Shisheesh’s standing to bring the RFD and to determine whether the court had jurisdiction to grant the relief she requested.

[2] On the preliminary jurisdiction motion, I concluded that Ms. Shisheesh had standing in part. I concluded that insofar as she was seeking relief with respect to the Independent Assessment Process (“IAP”) and with respect to any claims she may have against the law firm of Wallbridge, Wallbridge LLP, she had no standing and the court did not have the jurisdiction to grant the relief requested. However, I concluded that insofar as Ms. Shisheesh was seeking the court’s direction about the delivery of documents to the National Centre for Truth and Reconciliation (“NCTR”), she had standing.

[3] I held that she may file a fresh-as-amended RFD exclusively with respect to that matter, [1] and I directed that Ms. Shisheesh’s revised RFD should address the following question:

How does the IRSSA treat, if at all, the documents from the Cochrane civil proceedings, including the examinations for discovery transcripts, for the purposes of the Fontaine v Canada (AG), In rem Order?

[4] Ms. Shisheesh filed a revised RFD to which Canada and the Assembly of First Nations (“AFN”) responded. The Church Entities did not respond to her RFD.

[5] In her revised RFD, Ms. Shisheesh requests a direction that that she and the other Cochrane plaintiffs may deposit their examination for discovery transcripts with the NCTR. She also seeks a declaration that those transcripts are not subject to settlement privilege.

[6] What follows are my Reasons for Decision dismissing Ms. Shisheesh’s RFD.

[7] As a factual matter, Ms. Shisheesh was one of 154 former students of St. Anne’s IRS who commenced 62 civil actions in Cochrane, Ontario against Canada and the Catholic Church Entities that operated St. Anne’s IRS.

[8] The reasons for dismissing Ms. Shisheesh’s RFD may begin by noting that no direction is needed to confirm that Ms. Shisheesh and the other plaintiffs in the Cochrane civil actions may deposit the transcripts of their examinations for discovery with the NCTR. Nobody disputes or could dispute that Ms. Shisheesh and the other plaintiffs in the Cochrane civil actions have that right. (Parenthetically, it may be noted that the pleadings from the Cochrane civil actions have already been delivered to the NCTR.)

[9] Thus, what Ms. Shisheesh’s RFD is really about is her request for a declaration that the discovery transcripts from the Cochrane civil actions are not subject to settlement privilege. For the reasons that follow, however, I decline to make any declaration as to the legal status of the discovery transcripts from the Cochrane civil actions.

[10] On May 7, 2018, the Ontario Court of Appeal dismissed the appeal in Fontaine v. Canada (AG), 2017 ONSC 2487 [H15019, K10106, and Metatawabin #2], which considered the status of the Cochrane transcripts for the purposes of the IAP. [3]

[11] The Court of Appeal held that: (a) the discovery evidence from the Cochrane civil actions that were settled is not part of the IAP; and (b) the transcripts from the Cochrane civil actions are subject to the deemed undertaking rule. The Court of Appeal, however, declined to decide whether the Cochrane examination for discovery transcripts are subject to settlement privilege.

[12] In this RFD, there is also no need to decide this issue because it would not affect Ms. Shisheesh’s undisputed and undisputable right to deliver her discovery transcripts to the NCTR and to tell her own story as she may see fit.

[13] Ms. Shisheesh submits, however, that Canada – which itself has waived any settlement privilege - is controlling her right to tell her own story to the NCTR by asserting that the discovery transcripts are otherwise subject to settlement privilege.

[14] There is no merit to this submission. Canada is as entitled to submit that the discovery transcripts are subject to settlement privilege, as Ms. Shisheesh is entitled to submit that the transcripts are not subject to privilege; however, neither Canada nor Ms. Shisheesh are entitled to a determination of an issue that is not before the court.

[15] Settlement privilege is a matter of the law of evidence and whether the Cochrane discovery transcripts are admissible evidence in civil, administrative, or criminal proceedings will be determined in future cases on a case-by-case basis by the tribunal deciding the civil, administrative, or civil case. Also left for future determination on a case-by-case basis is the question of whether any privileged party has waived his or her privilege.

[16] Thus, it is neither necessary nor proper to make the requested declaration, and Ms. Shisheesh’s RFD should be dismissed.

[17] This is not a case for costs.

Perell, J.

Released: July 4, 2018