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 ATHABASCA, 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 WESTMINSTER, 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, INSTITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYACINTHE, 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 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 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

COUNSEL and APPEARANCES:

• Catherine A. Coughlan and Brent Thompson for the Attorney General of Canada
• Lawrence Greenspon for Fay Brunning
• Margaret Waddell for Angela Shisheesh

HEARING DATE: Written Submissions

PERELL, J.

REASONS FOR DECISION - COSTS

A. Introduction

[1] Under the Indian Residential School Settlement Agreement (“IRSSA”), Claimants may make a claim for compensation for assaults and other wrongful acts suffered while they were students at an Indian Residential School. The claims are determined by an independent Adjudicator in what is known as the Independent Assessment Process (“IAP”).

[2] The IRSSA itself is administered by judges of the superior courts across Canada, and on January 4, 2018, as one of two Supervising Judges, I dismissed a Request for Directions (“RFD”) brought by IAP Claimant C-14114, and I granted, in part, a companion RFD brought on behalf of Angela Shisheesh, who wished to be a witness for Claimant C-14114 at an IAP hearing. [1] Canada was the opposing party on the two RFDs. Fay Brunning was counsel for both Claimant C-14114 and Ms. Shisheesh, and Canada was represented by Catherine Coughlan of the Department of Justice. Given the divided success on the RFDs, I invited the parties to make costs submissions.

[3] The January 4, 2018 Decision stated in part as follows:

[210] […] Both Requestors have raised issues that have already been determined, and both have ignored the court’s direction that the standing and jurisdiction issues would be determined on the basis of their RFDs and facta, with no additional materials to be filed. C-14114 has expressly claimed that Canada has been given preferential treatment by the Courts, a contention that cannot be reconciled with the history set out in the “Factual Background” section of these reasons. Ms. Brunning has also baselessly claimed that Canada’s legal positions constitute an abuse of process and breach of the DOJ’s professional obligations. On the other hand, the jurisdiction motion was argued as one motion and C-14114 and Ms. Shisheesh were successful in establishing standing (although C-14114’s RFD was dismissed) and Ms. Shisheesh was successful in part on the jurisdictional aspects of the motion …

[4] The parties were unable to agree on costs, and I have received and reviewed their written submissions as well as those submitted by Ms. Waddell on behalf of Ms. Shisheesh.

[5] Canada makes a claim that $25,000 of costs be paid by Ms. Brunning personally. Canada asserts that Ms. Brunning brought duplicative, vexatious proceedings and has lodged baseless, scandalous allegations. Canada submits that through her actions, Ms. Brunning has undermined the confidence of Class Members and the public in the IRSSA’s ability to effect reconciliation. To deter and denounce such conduct, Canada requests costs. Canada undertakes that any costs paid by Ms. Brunning will be deposited into the Designated Amount Fund for distribution to trust beneficiaries established under section 5.07(1) of the IRSSA.

[6] For the reasons set out below, I award Canada the sum of $25,000 in costs, payable by Ms. Brunning personally.

B. FACTS

1. The Indian Residential Schools Settlement Agreement

[7] The IRSSA is the pan-Canadian class action settlement that was approved by nine provincial and territorial superior courts over a decade ago, on dates in December 2016 and January 2017. It is intended to bring about a “fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools”. The IRSSA aims to promote “healing, education, truth and reconciliation and commemoration”. However, not all parts of the IRSSA are reconciliatory. There are adversarial and contentious aspects to the IRSSA.

[8] The IRSSA provides compensation to those who attended Indian Residential Schools through two means. Overseen by the Chief Adjudicator who is assisted by an administrative apparatus known as the Indian Residential Schools Adjudication Secretariat, the IAP provides the means through which former students, who suffered sexual abuse, serious physical abuse, and other wrongful acts resulting in serious psychological consequences are compensated. It is a claimant-centered, inquisitorial process. The other means of compensation is the Common Experience Payment, which provides compensation for those who prove that they attended an Indian Residential School. The IAP is a specialized inquisitorial process with adversarial aspects under the supervision of the Chief Adjudicator.

2. RFDs in relation to St. Anne’s IRS

[9] The RFDs brought on behalf of the two Requestors concerned IAP claims by students who were survivors of St. Anne’s IRS. I heard the two RFDs as a “Supervising Judge” under the IRSSA. [2] In that role, I have heard a total of 10 RFDs concerning St. Anne’s IRS, all of them brought by Ms. Brunning (although sometimes in conjunction with other counsel). [3] The RFDs commonly involved motions for various forms of preliminary relief (costs immunity, confidentiality orders, compelling testimony from and disqualification of Canada’s counsel, compelling testimony from the IAP’s Chief Adjudicator, an IAP Review Adjudicator and representatives of the Catholic Church Entities, etc.). Ms. Brunning has enjoyed a substantial measure of success in those RFDs and her clients have been granted significant costs awards: $250,000 in one case, [4] $78,089.95 in another [5] and $50,000 in a third one. [6]

3. C-14114 RFD and Shisheesh RFD

[10] The relevant aspects of the procedural history of Claimant C-14114’s RFD and Ms. Shisheesh’s RFD are as follows.

[11] On November 11, 2016, Ms. Brunning filed an RFD on behalf of IAP Claimant C-14114, and the RFD was amended on November 6, 2017.

[12] On December 14, 2016, at a case conference, IAP Claimant C-14114’s RFD and an RFD brought by another Claimant represented by Ms. Brunning, Claimant H-15019, were adjourned sine die. The two RFDs had been scheduled to be heard on March 24, 2017. Although the adjournment was at Ms. Brunning’s request, she would later assert that the court had adjourned Claimant C-14114 RFDs numerous times, without an endorsement or without reasons.

[13] On July 19, 2017, Ms. Brunning filed an RFD on behalf of Ms. Shisheesh. Ms. Shisheesh was an IRSSA class member but not an IAP claimant.

[14] I scheduled jurisdictional motions for IAP Claimant C-14114’s RFD and Claimant H-15019’s RFD for September 22, 2017. I issued a direction that: (1) the Requestors were required to establish standing to bring their respective RFDs, (2) Canada was not required to file evidence in connection with either RFD, nor to respond to Ms. Brunning’s Request to Admit, and (3) the Requestors would not be granted a costs immunity. [7]

[15] On September 8, 2017, Ms. Brunning sought an adjournment of the jurisdiction motion to permit the potential participation of the Assembly of First Nations (the “AFN”), the Chief Adjudicator, and other IAP claimants’ counsel. I granted the adjournment. Although this adjournment was granted at Ms. Brunning’s request, she would later assert that the court had adjourned Claimant C-14114 RFD’s numerous times, without an endorsement or without reasons.

[16] Thus the RFDs did not proceed on September 22, 2017 because of the possible intervention of the AFN. The September 22, 2017 hearing was converted into a case conference. At the conference, a timetable was established, and the jurisdiction motions for the RFDs were rescheduled for December 13, 2017. I directed that the materials for the hearing would be the RFDs already filed and factums. I directed that no other materials were to be filed. [8]

[17] In November 2017, notwithstanding my direction, Ms. Brunning filed new material from IAP Claimant C-14114 and from Claimant H-15019. They amended their RFDs with additional evidence, including an affidavit from Larry Philip Fontaine dated November 8, 2017, which had been prepared for an RFD being decided by Justice Brenda Brown, the Supervising and Administrative Judge for the IRSSA in British Columbia.

[18] On December 13, 2017, the jurisdiction motion was argued. Ms. Brunning with Margaret Waddell as co-counsel, appeared for IAP Claimant C-14114, for Claimant H-15019, and for Ms. Shisheesh. Ms. Coughlan appeared for Canada. The AFN did not participate.

[19] On January 4, 2017, I released my Reasons for Decision.

[20] The January 4, 2018 Decision was the latest in a line of decisions arising out of RFDs brought by Ms. Brunning on behalf of former St. Anne’s IRS students. Those RFDs are discussed at paragraphs 4, 43-75, 77-89 and 92-95 of the January 4, 2018 Decision. Ms. Brunning has acted as counsel or co-counsel for the Requestors in each of those RFDs, which were mainly concerned with issues regarding disclosure by Canada under the IRSSA, and in particular, Canada’s documentary production and report-making obligations.

[21] In the January 4, 2018 Decision, I described certain submissions made by Ms. Brunning on behalf of the Requestors as “damning allegations”. These allegations were made against Canada and the courts administering the IRSSA across Canada.

[22] Ms. Brunning contended that Canada had breached the IRSSA and that Canada’s legal positions amounted to an abuse of process and a breach of the professional obligations owed by lawyers employed by the Department of Justice. She alleged that: (a) Canada had engaged in concealment of documents for St. Anne’s IRS; (b) Canada was in contempt of an Order I had made dated January 14, 2014; (c) Canada cannot be trusted; (d) Canada causes delays and expense and stress but there is no penalty for its concealment of mandatory documents; (e) Canada’s POI (person of interest) Reports could be completely false; and (f) Canada was committing an egregious breach of the IRSSA.

[23] Ms. Brunning alleged that: (a) the courts of British Columbia and Ontario, i.e., two of the nine Supervising Judges, who are also Administrative Judges for the purposes of the Court Administration Protocol, were biased in Canada’s favour; (b) the courts were not doing their job of enforcing the IRSSA; (c) the Government of Canada was receiving preferential treatment from the Superior Courts;” (d) the Administrative Judges had split the legal issues between Ontario and British Columbia, without written reasons and without regard to surrounding circumstances; and, (e) the Superior Courts were protecting Canada from being examined and from providing answers to the Request to Admit for RFDs.

C. Submissions

1. Canada

[24] Canada seeks $25,000 in costs and requests that that amount be paid by Ms. Brunning personally to deter and denounce her conduct. Canada argues that while her zeal for her clients should be recognized, Ms. Brunning has: (1) brought duplicative, vexatious proceedings; (2) made baseless, scandalous allegations; and (3) unduly enlarged the proceedings. Canada says that Ms. Brunning has undermined the confidence of Class Members and of the public in IRSSA.

[25] Should a costs order be made against Ms. Brunning, Canada undertakes to donate it to the charitable trust beneficiaries established under Article 5.07(2) of the IRSSA.

[26] It was Canada’s submission that the facts of this case fall within rule 57.07(1) of the Rules of Civil Procedure, which authorizes costs awards against a lawyer personally. Canada notes that after the Court directed the hearing on standing to take place on September 22, 2017, Ms. Brunning wrote to Court Counsel, challenging whether standing needed to be established. Ms. Brunning went on to insist that Canada file evidence and that a costs immunity be granted. Ms. Brunning also served a Notice to Admit on Canada. Thereafter, she sought an adjournment of the standing hearing and openly defied the Court’s direction that the issue of standing be determined on the record as it existed on September 22, 2017. In contravention of the court’s direction, she filed Amended RFDs and additional evidence, including the affidavit of Mr. Fontaine.

[27] It was Canada’s submission that much of the relief requested by Ms. Brunning on behalf of Ms. Shisheesh and C-14114 was barred by res judicata and stare decisis established in consequence of other RFDs brought by Ms. Brunning herself.

[28] Canada also points to the numerous allegations made against Canada, which are described above, and submits that these allegations are baseless and fly in the face of court determinations to the contrary.

[29] Canada also points to other allegations made by Ms. Brunning; namely that: (a) IAP Adjudicators and the Chief Adjudicator have failed to enforce Canada’s disclosure obligations in the IAP; (b) the courts gloss over very serious violations of Indigenous persons, who were already abused as children; (c) the courts were protecting Canada; and (d) that the courts and their agents share in this failure to obtain proper disclosure from the Defendants of the IAP.

[30] It was Canada’s further submission that Ms. Brunning’s conduct justifies a costs award against her personally because she has engaged in collateral attacks, has instituted hopeless proceedings, has escalated proceedings, has failed to honour court Orders, has made unsubstantiated allegations of conspiracy, fraud and misconduct, and has used scandalous or inflammatory language in her court filings. Further, Canada contended that bringing actions to determine issues already determined by a court of competent jurisdiction constitutes a vexatious proceeding and an abuse of process.

[31] Finally, Canada points to the recent Decision of the Court of Appeal in Ferreira v. St. Mary’s General Hospital, 2018 ONCA 247, as authority for the proposition that this court possesses inherent jurisdiction to address behaviour which does not fall within rule 57.07(1). Canada’s overall position was that a costs award against Ms. Brunning is consistent with the sound exercise of the court’s inherent jurisdiction and that rule 57.07 simply provides a further and alternative analytical framework.

[32] Canada invites me to consider actions taken by Ms. Brunning after the release of the January 4, 2018 Decision which prompted me to make a case management direction with respect to Claimant C-14114’s pending IAP hearing. [10]

2. Ms. Shisheesh

[33] Despite her relative lack of success, Ms. Shisheesh claims partial indemnity costs. However, much of her submissions amounts to a defence of her former counsel, Ms. Brunning. Ms. Shisheesh asserts, for example, that: (a) although the court was invited to depart from its conclusion that the transcripts from examinations for discovery in what have come to be known as the “Cochrane civil actions” were subject to settlement privilege, that conclusion was reached on a different evidentiary record and the issue had not been finally determined because the prior finding was under appeal; (b) it was not an abuse of process to raise the issue of the use to be made of the discovery transcripts from the Cochrane civil actions in that the court was not bound by stare decisis, given the different evidentiary record; (c) the Shisheesh RFD was not found by the court to be vexatious, nor to bring the administration of justice into disrepute, so it was, therefore, not an abuse of process; (d) any of Ms. Brunning’s conduct after the January 4, 2018 Decision was released, or in respect of any prior proceedings is irrelevant to the costs issue now before the court; (e) the test for awarding costs against a lawyer personally is not met in this case because Ms. Brunning did not cause Canada to incur costs unnecessarily; and (f) having in mind the need for extreme caution prescribed by the Supreme Court of Canada and the Court of Appeal, this Court should not exercise its discretion to make a costs award against Ms. Brunning.

3. Ms. Brunning

[34] Ms. Brunning’s costs submissions are 27 pages in length. The first mention of costs is at page 16. Ms. Brunning submitted that Canada was not claiming compensation for unreasonably incurred costs, as required by rule 57.07(1) but that Canada quite blatantly requests costs to be ordered against her personally for deterrence and denunciation purposes. She denies that rule 57.07(1) can be used for this purpose and that her conduct otherwise falls within the rule.

[35] Ms. Brunning submits that she acted in within her professional obligations and that those actions never resulted in or caused unreasonable costs to be incurred, which is the test to be applied to determine whether any award should be made against counsel under rule 57.07(1).

[36] Ms. Brunning submits that she did not re-litigate any issue that had already been decided with finality and that her conduct, even as described by Canada, does not satisfy the test for costs to be awarded against counsel personally under rule 57.07(1).

[37] Ms. Brunning submitted that rule 57.07 circumscribes or precludes the inherent jurisdiction otherwise recognized by Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, discussed below. In any event, she submitted that none of her actions amounted to an abuse of process or an interference with the administration of justice.

[38] Further, Ms. Brunning submitted that any concerns about her behaviour ought not to be dealt with through a costs award, but rather under the Administrative Protocol for Addressing and Managing Complaints related to the Integrity of the Independent Assessment Process that is appended to the Joint Direction issued by the IRSSA Administrative Judges on November 25, 2014.

D. Analysis

[39] The Administrative Protocol has no application in the circumstances of this matter. It was meant to address complaints relating to fraudulent IAP claims and alleged misconduct of IAP claimant counsel towards their clients. It does not address the issue of lawyers’ responsibilities to the administration of justice more generally, nor does it fetter the courts’ discretion to address the conduct of counsel appearing before them.

[40] Canada has undertaken that any costs paid by Ms. Brunning will be into the Designated Amount Fund for contribution to the trust beneficiaries established under Article 5.07(2) of the IRSSA. Canada’s undertaking is not a factor in my consideration of whether to order that Ms. Brunning pay costs personally.

[41] Ms. Shisheesh might be entitled to costs in the revised RFD that was a consequence of her partial success in the RFDs now before the court. She is not entitled, however, to any costs for her failed RFD. She was the unsuccessful party, and Canada, the successful party, is not claiming costs as against her. There should be no order as to costs with respect to Ms. Shisheesh’s RFD.

[42] Recognizing the Courts’ reticence to award costs against individual class members bringing RFDs, in all of the litigation arising from the IRSSA (which now includes over 100 RFDs), Canada has never sought costs against class members. In this case, however, it seeks a costs award against counsel personally.

[43] Rule 57.07 (1) of the Rules of Civil Procedure states:

LIABILITY OF LAWYER FOR COSTS

57.07 (1) Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order,

(a) disallowing costs between the lawyer and client or directing the lawyer to repay to the client money paid on account of costs;

(b) directing the lawyer to reimburse the client for any costs that the client has been ordered to pay to any other party; and

(c) requiring the lawyer personally to pay the costs of any party.

(2) An order under subrule (1) may be made by the court on its own initiative or on the motion of any party to the proceeding, but no such order shall be made unless the lawyer is given a reasonable opportunity to make representations to the court.

(3) The court may direct that notice of an order against a lawyer under subrule (1) be given to the client in the manner specified in the order.

[44] In Galganov v. Russell (Township), 2012 ONCA 410, the Court of Appeal recognized that the power to award costs against counsel personally may be founded in either rule 57.07 or in the courts’ inherent jurisdiction. The Court stated at paras. 14 and 15 of its judgment:

14. The court in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (1998), 16 C.P.C. (4th) 201 (Ont. Gen. Div.), at para. 121, recognized that “the criteria on which an order for costs may be made against a solicitor personally pursuant to [r]ule 57.07 and pursuant to the inherent jurisdiction of the court may differ.” Accordingly, rule 57.07(1) is not simply a codification of the common law. Rather, it is designed to protect and compensate a party who has been subjected to costs being incurred without reasonable cause, not to punish a lawyer: see also Young, at p. 135.

15. Similarly, in Carleton v. Beaverton Hotel (2009), 96 O.R. (3d) 391 (Div. Ct.), at para. 24, the court held that costs against a lawyer personally are intended to be compensatory and rule 57.07(1) “clearly speaks to the issue of compensating parties for unnecessary costs.” The court’s inherent power to order costs in rare cases for contempt or to control its officers in which punishment is an objective is a separate issue from a costs order under rule 57.07 (1).

[45] Galganov was cited with approval in 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, where Chief Justice Strathy stated at para. 78:

78. The court’s inherent jurisdiction to order non-party costs to prevent misconduct amounting to an abuse of process is separate from and in addition to the court’s jurisdiction to order costs against a solicitor of record under r. 57.07 of the Rules of Civil Procedure: [….]

[46] The inherent jurisdiction to award costs against counsel personally and the circumstances in which such an award is appropriately made were considered by the Supreme Court of Canada in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26. While that case addressed costs against lawyers in criminal proceeding, the Court articulated general principles that have been applied in civil proceedings. [15] The following aspects of the majority’s decision, written by Justice Gascon at paras. 18 and 29 are apposite to the immediate circumstances:

18. There is an established line of cases in which courts have recognized that the awarding of costs against lawyers personally flows from the right and duty of the courts to supervise the conduct of the lawyers who appear before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice: Myers, at p. 319; Pacific Mobile Corporation v. Hunter Douglas Canada Ltd., [1979] 1 S.C.R. 842, at p. 845; Cronier, at p. 448; Pearl v. Gentra Canada Investments Inc., [1998] R.L. 581 (Que. C.A.), at p. 587. As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct (M. Code, at p. 121).

19. In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate. Thus, a lawyer may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner.

[47] In my view, both rule 57.07(1) and the court’s inherent jurisdiction apply to the circumstances of the immediate case. Ms. Brunning’s conduct was a concerted effort to relitigate issues that had not been decided in her clients’ favour. She did not abide by the court’s orders with respect to what material should be filed in the proceedings. In Best v. Ranking, 2016 ONCA 492, costs were awarded against counsel personally for his role in launching a doomed action that was just a reconstituted version of an action that had previously been dismissed. Ms. Brunning’s conduct in the immediate case is similar and falls with the ambit of rule 57.07(1). Her conduct caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default.

[48] To be clear, I also find that Ms. Brunning’s unfounded allegations described above are deserving of sanction in the form of an award of costs to be paid by her personally as a matter of the court’s inherent jurisdiction to control its own process and to discipline its own officers.

[49] In the immediate case, it is not as if Ms. Brunning’s repeated allegations against Canada and against the courts were not taken seriously by the courts. My Reasons for Decision in the immediate case set out the history of how the court has responded to the various allegations made against Canada and against the courts in Ontario and in British Columbia. Notwithstanding the seriousness with which the court treated her allegations, Ms. Brunning appears to have ignored or not listened to the courts’ reasons.

[50] But also to be clear, I do not find that Ms. Brunning’s conduct was dishonest or malicious or that she had any actual intent to obstruct the orderly conduct of the judicial process. I find, however, that as well-intentioned as it may have been from the perspective of her duty to her client, her conduct falls into that extraordinary territory where she failed to fulfill her obligations to the administration of justice in the circumstances of the immediate case.

[51] If the reconciliation goals of the IRSSA are to be achieved, there needs to be speaking to one another, but there also needs to be listening to one another with mutual respect and dignity.

[52] I am satisfied that this is an appropriate case in which to order counsel to pay costs personally and that the amount sought by Canada is reasonable, proportionate and appropriate.

E. Conclusion

[53] For the reasons set out above, I award Canada the sum of $25,000, payable by Ms. Brunning personally. I make no other order as to costs.

Perell, J. Released: July 4, 2018

COURT FILE NO.: 00-CV-192059 DATE: 201807 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

REASON FOR DECISION – COSTS

Perell, J. Released: July , 2018

[1] Fontaine v. Canada (Attorney General), 2018 ONSC 103.

[2] In addition to being one of the nine Supervising Judges for the IRSSA’s purposes, I have been designated the Eastern “Administrative Judge” under the Court Administration Protocol appended to the Implementation Orders operationalizing the IRSSA. Justice Brenda Brown of the British Columbia Supreme Court is the Western Administrative Judge.

[3] Ms. Brunning has also brought two other RFDs that were not pursued. One was brought on behalf of the Mushkegowuk Council (dated March 2, 2016; abandoned by letter dated October 3, 2016). The other was withdrawn on a without costs basis on September 22, 2017. It was not brought on behalf of any particular IRSSA class member and sought directions: (1) regarding taxes owed by the Defendants on legal fee contributions, (2) stopping mandatory legal fee reviews following IAP hearings and (3) compelling Canada and the Catholic Church Entities that operated St. Anne’s IRS to make admissions on elements relevant to proof of student-on-student abuse (“SOS Abuse”) claims.

[4] Fontaine v. Canada (Attorney General), 2014 ONSC 3059.

[5] Fontaine v. Canada (Attorney General), 2014 ONSC 5032.

[6] Fontaine v. Canada (Attorney General), 2015 ONSC 5431.

[7] See Fontaine v. Canada (Attorney General), 2017 ONSC 5174.

[8] This was not the first time that I directed that no other materials were to be filed in connection with a hearing to determine jurisdiction or standing. In 2016, I made this direction in in connection with another RFD brought by Ms. Brunning. See Fontaine v. Canada (Attorney General), 2016 ONSC 7913.

[9] 2018 ONCA 247.

[10] Fontaine v. Canada (Attorney General), 2018 ONSC 357.

[11] 2017 SCC 26.

[12] 2012 ONCA 410.

[13] 2017 ONCA 184 at para. 78.

[14] 2017 SCC 26.

[15] Sgrignuoli v. Melara, 2018 ONSC 255 at para. 14 (Div. Ct.).

[16] 2016 ONCA 492.