COURT FILE NO.: 00-CV-192059

DATE: 20180927

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 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

PERELL, J.

DIRECTION

A. Introduction

[1] This Direction rescinds and replaces my earlier Direction (Fontaine v Canada (Attorney General), 2018 ONSC 5197) made as the Eastern Administrative Judge and the Ontario Supervising Judge for the Indian Residential Schools Settlement Agreement (“IRSSA”). In that Direction, I directed the Chief Adjudicator of the Independent Assessment Process (“IAP”) to terminate his involvement in pending litigation before various appellate courts arising from the IAP, in which he advances, in my view, partisan positions, which may compromise the integrity of the IAP.

[2] The Chief Adjudicator sought and was granted a stay by the Court of Appeal for Ontario, pending appeal to that court (Fontaine v. Canada (Attorney General), 2018 ONCA 749), largely on the ground that the Chief Adjudicator had been denied due process.

[3] In granting the stay, the Court of Appeal made the appeal of the Direction largely moot in that the Chief Adjudicator will be making submissions on the appeal scheduled to be argued at the Supreme Court of Canada on October 10, 2018.

[4] In these circumstances, I have decided to rescind that Direction and follow a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns. Importantly, it will also provide the Chief Adjudicator with a full hearing with due process, as he submits is his due.

[5] To provide that opportunity, I am appointing amicus curiae to bring a Request for Direction (“RFD”). This RFD shall be heard and determined at a joint hearing by a panel of two Supervising Judges, to be assigned in accordance with the Court Administration Protocol appended as Schedule “A” to the Implementation Orders.

[6] The panel of two Supervising Judges shall be composed of

1. Justice Ronald S. Veale of the Supreme Court of Yukon, and

2. Justice Chantal Corriveau of the Québec Superior Court

and the joint hearing shall be held in Toronto during the month of November 2018.

[7] The RFD shall address the following issues:

1. Has the Chief Adjudicator taken partisan positions before courts, including appellate courts, orally or in writing?

2. If the Chief Adjudicator has done so, has he obtained instructions from the Supervising Courts or the advice of the IAP Oversight Committee prior to doing so?

3. Did the Chief Adjudicator comply with the direction of Justice Brown, the Supervising Judge for British Columbia, that a stay of her January 17, 2018 order (Fontaine v. Canada (Attorney General), 2018 BCSC 63) would be required from the British Columbia Court of Appeal before any hold could be put on cases engaging “procedural fairness” issues?

4. Has the Chief Adjudicator properly reported to the Courts as required by the Implementation Orders?

5. In light of the answers to the above, what measures, if any, should be taken in the circumstances?

[8] The materials to be filed on the RFD shall include the following:

1. The Chief Adjudicator’s 43^rd Quarterly Report;

2. The Chief Adjudicator’s Response to Application for Leave to Appeal and his Respondent’s Factum (filed on June 27, 2018) in the appeal to the Supreme Court of Canada in the matter bearing the style of cause of J.W. and REO Law Corporation v. Attorney General of Canada, et al., SCC Case Number 37725;

3. The Chief Adjudicator’s Respondent’s Factum in the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Ronnie Gail Scout v. Attorney General of Canada et al., BCCA File No. CA44378;

4. The Chief Adjudicator’s Factum (filed July 9, 2018) in the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Larry Philip Fontaine et al. v. Attorney General of Canada et al., BCCA File Nos. CA45085 and CA45093;

5. Correspondence from the Chief Adjudicator’s counsel to Court Counsel, dated February 9, 2018 addressing paragraph 100 of Justice Brown’s decision in Fontaine v. Canada (Attorney General), 2018 BCSC 63, Court Counsel’s subsequent email to the Chief Adjudicator’s counsel and transcript of proceedings before Justice Brown on February 15, 2018, in which there was discussion of the need to obtain a stay from the British Columbia Court of Appeal;

6. Indian Residential Schools Settlement Agreement, Schedule “D”, item s (i) (Duties of the Chief Adjudicator);

7. The Joint Direction of Justice Brown and myself, dated November 25, 2014; and

8. Such further materials as counsel may advise and the Supervising Judges may permit.

[9] I appoint Benjamin Zarnett, of Goodmans LLP, as amicus curiae for the purposes of this RFD.

[10] The Chief Adjudicator is entitled to be represented by counsel who shall be paid in the normal course of the administration of the IRSSA.

[11] The RFD shall be served in accordance with the RFD Service Protocol accessible on the Indian Residential Schools Settlement Agreement Official Court Website at http://www.classactionservices.ca/irs/documents/REQUESTFORDIRECTIONSERVICEPROTOCOL.pdf .

[12] Matters regarding the scheduling of the hearing of this RFD and a timetable for the delivery of materials shall be addressed through Court Counsel.

[13] Court Counsel shall forthwith bring this Direction to the attention of:

1. the Chief Adjudicator;

2. the Chair of the IAP Oversight Committee;

3. the Chair of the National Administration Committee;

4. counsel for the parties in each of

i J.W. and REO Law Corporation v. Attorney General of Canada, et al., SCC Case Number 37725,

ii Ronnie Gail Scout v. Attorney General of Canada et al., BCCA File No. CA44378, and

iii Larry Philip Fontaine et al. v. Attorney General of Canada et al., BCCA File Nos. CA45085 and CA45093;

5. each of the Supervising Judges;

6. Benjamin Zarnett; and

7. Justice Robert Sharpe of the Court of Appeal for Ontario.

PERELL J.

Released: September 27, 2018

COURT FILE NO.: 00-CV-192059

DATE: 20180927

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: September 27, 2018