Court File and Parties

COURT FILE NO.: 00-CV-192059 DATE: 20181119 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

Plaintiff

• 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

COUNSEL:

• Katherine Hensel, for the Requestor
• Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada

HEARD: SEPTEMBER 12, 2018

PERELL, J.

Reasons for Judgment

A. Introduction

[1] The Indian Residential Schools Settlement Agreement (“IRSSA”) is an historic class action settlement that seeks to provide redress to Indigenous Canadians who survived the federal government (“Canada”)’s misguided policy of placing Indigenous children in what were known as Indian Residential Schools (“IRS”). This policy was pursued for over 120 years. The first Indian Residential School opened in the 1870s. The last one closed in the waning years of the twentieth century.

[2] The IRSSA is Canada’s largest and most complex class action settlement. The redress it provides for is both compensatory and remedial in a broader sense. The means of compensation are twofold. The Common Experience Payment (“CEP”) uses a formula based on years of attendance to compensate all of those who attended Indian Residential Schools for loss of connection with family and community and loss of culture and language. The Independent Assessment Process (“IAP”) is the means of compensating those who suffered sexual abuse, physical abuse, and other wrongful acts at Indian Residential Schools. The IAP is a claimant-centered, inquisitorial process. As part of that process, Canada is required to prepare documents that summarize the operation of each IRS (“school narratives”) and reports that summarize the activities and relevant involvement of “persons of interest”, i.e., alleged perpetrators (“POI reports”).

[3] In December 2006 and January 2007, the IRSSA was approved by nine provincial and territorial superior courts – those of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Yukon, Northwest Territories and Nunavut (collectively, the “Courts”), and in March 2007, the Courts ordered that the IRSSA be implemented. The orders that the Courts made in substantially identical terms in consequence are known as the “Approval Orders” and the “Implementation Orders”. These orders call upon the Courts to maintain an active role in overseeing the IRSSA’s implementation and administration. One means by which the Courts meet that responsibility is by hearing a kind of application known as a Request for Direction (“RFD”) through a process set out in the Court Administration Protocol appended to each of the Implementation Orders.

[4] The Administration Protocol required each of the Courts to designate one of its members as that court’s “Supervising Judge” for the purposes of the IRSSA’s implementation and administration, and for the designation of a “Western Administrative Judge” and an “Eastern Administrative Judge”. I am both this court’s Supervising Judge and the Eastern Administrative Judge in relation to the IRSSA. My colleague Justice Brenda Brown of the British Columbia Supreme Court is that court’s Supervising Judge and the Western Administrative Judge for the IRSSA’s purposes.

[5] These reasons are given in connection with an RFD brought on behalf of an Indian Residential School survivor and IAP claimant to whom I will refer as “E-10290” (the unique identifier assigned to him for the purposes of the IAP) or the “Requestor”. The Requestor attended St. Anne’s Indian Residential School in Fort Albany, Ontario. The Requestors made a claim through the IAP, had a hearing and received compensation.

[6] The Requestor seeks an order directing that his IAP claim be re-opened. He asserts that this is necessary to remedy a miscarriage of justice, which he contends was caused by Canada’s previous breach of its disclosure obligations. The Requestor claims that re-opening his IAP claim is necessary so that a proper inquisitorial process can be followed regarding his testimony relating to an electric chair that was used at St. Anne’s IRS, and so that his testimony may be reassessed in light of all pertinent evidence.

[7] For the reasons set out below, I have concluded that the Requestor’s RFD should be dismissed. However, I regard it appropriate to compensate the Requestor’s counsel for her substantial work in bringing and arguing the RFD, and award her costs fixed at $15,000.

B. Factual and Procedural Background

[8] St. Anne’s IRS was in operation for seventy years, from 1906 to 1976. [1] For most of that period, St. Anne’s IRS was operated by two Catholic Orders, the Oblates of Mary Immaculate and the Grey Nuns of Cross. In 1965, Canada assumed direct responsibility for the educational component of St. Anne’s IRS’s operation, and in 1970, Canada purchased the buildings and land and assumed complete responsibility for its operation.

[9] In August 1992, at what was known as the St. Anne’s Residential School Reunion and Healing Conference, thirty former students alleged they had been sexually, physically and mentally abused while at St. Anne’s IRS. Some students spoke of being forced to sit in an electric chair for punishment. In November of that year, the Ontario Provincial Police (“OPP”) initiated what was to become a four-year long investigation in which approximately 700 people were interviewed. A number of criminal charges and convictions resulted.

[10] The Requestor attended St. Anne’s IRS from October 1962 to December 1966 and again from June1967 to March 1972.

[11] On July 9, 2010, the Requestor filed an IAP application seeking compensation for sexual abuse by an employee of St. Anne’s IRS, Brother A. No other sexual abuse was claimed. The Requestor’s IAP application included a drawing of a person on the electric chair at the IRS but articulated no claim for compensation in respect of it. In his IAP application, the Requestor acknowledged he did not suffer physical injury capable of meeting the IAP’s threshold requirements. He ticked a box indicating that he had not suffered physical harm.

[12] His IAP claim was heard over two days, on May 28, 2013 (in Montreal) and October 16, 2013 (in Timmins).

[13] At the hearing, the assigned IAP adjudicator (the “Adjudicator”)’s questioning of the Requestor focused on the abuse by Brother A as had been alleged in the Requestor’s IAP application. In his testimony, the Requestor addressed an incident in which he was placed on the electric chair as a form of punishment.

[14] On June 25, 2013, approximately one month after the first hearing day, the Requestor’s counsel submitted a “supplementary description of abuse” in which he set out allegations of previously unclaimed sexual abuse by Mr. R, an employee at the IRS. The Requestor’s counsel requested a new date for continuation of the hearing.

[15] On the second hearing day, the Adjudicator asked the Requestor questions designed to elicit his explanations for the delayed disclosure of the allegations concerning Mr. R. Ultimately, the Adjudicator found that this claim of abuse was not established because of the internal inconsistencies in the Applicant’s explanation for the delay in making the claim. The Requestor’s evidence was found to be unreliable.

[16] At the conclusion of the hearing, there was consensus that the claim of sexual abuse by Brother A was established.

[17] On January 29, 2014, the parties made oral submissions to the hearing adjudicator.

[18] During submissions, the Requestor’s counsel referred to the incident involving the electric chair solely as an aggravating factor; it was not put forward as a compensable act. Canada’s representative took no issue with the Requestor’ submission that the punishment on the electric chair qualified as an aggravating factor.

[19] In a decision dated March 25, 2014, the Adjudicator granted substantial compensation. In doing so, the Adjudicator accepted the claim of sexual abuse by Brother A but did not accept allegations involving Mr. R, stating that it was “possible that [the alleged abuse by Mr. R] occurred, but the evidence is insufficient for me to make a finding of compensability within the IAP”. The Adjudicator’s decision explained,

Overall, I find that the various versions of the timing of the [Mr. R allegation] do not make sense. The Claimant is also vague about the number of incidents. Even if I were to overlook these weaknesses, as his counsel requested, the other problems are still there, namely that there are too many versions of the reason for not listing this allegation in the application in the first place or telling me about it at the first hearing. Considering the totality of the evidence in regards to the [Mr. R allegation] I find the evidence to be unreliable for the reasons submitted by Canada’s lawyer. The second allegation is neither clear, cogent, nor convincing.

[20] The Adjudicator accepted that in relation to the allegation concerning Brother A, the Requestor had suffered sexual abuse at level 2 and harm at level 3. Taking into account aggravating factors and loss of opportunity, the Requestor was awarded $54,000 including future care. The decision does not mention the electric chair allegation specifically, but does find aggravating factors and assigns a 10% increase in points as a result.

[21] The Requestor was represented by counsel throughout the process.

[22] On June 5, 2014, the 30-day deadline for seeking a review of the decision expired. The Requestor expressed a desire to review the decision. The Requestor’s counsel declined to act on the review, but he sought an extension of time for the filing of the review on his client’s behalf. Ultimately, no request for review was ever brought.

[23] In November 2014, the Requestor obtained independent legal advice as to the implications of signing and signed what is knows as an “Acceptance of Decision”. He received payment of the award in December 2014. He took no other legal steps until March 2018, when a draft of the present RFD was circulated.

[24] As the Requestor’s IAP claim was being processed, other proceedings were taking place before the Courts in relation to St. Anne’s IRS and the IAP generally. In particular:

a On January 14, 2014, this court issued a decision ordering the production for the purposes of the IAP of documents obtained and generated by the OPP in its investigation of sexual, physical and mental abuse at St. Anne’s IRS (the “OPP Documents”). [2] Canada received a subset of the OPP Documents in the early 2000s through pre-IRSSA civil litigation involving St. Anne’s IRS. The court also ordered Canada to prepare revised school narratives and POI reports;

b On March 6, 2014 (before release of the hearing adjudicator’s decision in relation to the Requestor’s IAP claim), the Chief Adjudicator notified all IAP claimants’ counsel advising that pending the availability of the OPP documents and revised school narrative and POI reports, hearings involving St. Anne’s IRS would continue to proceed without adjournment;

c On June 30, 2014, the documents that were the subject of this court’s order of January 14, 2014 were made available to IAP claimants’ counsel through the Adjudication Secretariat’s secure database. These documents included information relating to the electric chair and documents pertaining to Mr. R;

d On June 23, 2015, this court released a further decision in which it was held that the Narrative for St. Anne’s IRS and the POI Reports for St. Anne’s IRS as they existed at the time did not comply with the requirements of the IRSSA; [3] and,

e On February 2, 2017, a deadline ordered by Justice Brown elapsed, the effect of which was to bar any further requests for what has come to be known as “judicial recourse” in relation to IAP decisions rendered prior to November 30, 2016. [4] Notice of this deadline was posted on the website of the Indian Residential Schools Adjudication Secretariat. Judicial recourse arises after the review mechanisms provided for in the IAP have been exhausted, and judicial recourse is only available in exceptional circumstances.

C. Submissions

Requestor’s Submissions

[25] The Requestor sought to reopen his IAP claim to remedy what was characterized in his RFD as “a miscarriage of justice occasioned by Canada’s previous breach of disclosure obligations under the [IRSSA].” This was necessary, it was submitted, in order that there could be a proper inquisitorial process regarding his testimony about the electric chair, and so that his testimony could be reassessed in light of all of pertinent evidence. The Requestor also sought an order permitting him to amend his IAP application.

[26] On behalf of the Requestor, Ms. Hensel submitted that the breach of Canada’s disclosure obligations found by this court in St. Anne’s #1 ” prevented the Adjudicator from properly carrying out his functions, to the Requestor’s material prejudice. Referring to this court’s decision in St. Anne’s #1, Ms. Hensel contended that the circumstances of this case should lead to the conclusion this occasioned “more than a theoretical miscarriage of justice”. Moreover, she submitted, the harm resulting to the Requestor is not merely financial (in that the quantum of his IAP award was reduced); the harm extends to emotional and psychological effects of not having his experience officially acknowledged and addressed.

[27] Ms. Hensel submitted that the Requestor was not arguing that the Schachter threshold (that is, the threshold for judicial recourse established by the Court of Appeal in Fontaine v. Duboff Edwards Haight & Schachter, [5]) should be overturned or expanded. Instead, the Requestor submits that it either does not apply in the circumstances of this case or that it should not be interpreted in a manner that precludes judicial recourse where the rights conferred by the IRSSA have been denied and where the IAP’s review mechanisms do not provide a means to correct that denial.

[28] Ms. Hensel also argued that it is significant that the Requestor decided to accept his award in November 2014, prior to this court’s June 2015 decision in relation to St. Anne’s #2.

[29] On the Requestor’s behalf, Ms. Hensel submitted that the Requestor should be granted a new IAP hearing, or in the alternative, that he should now be permitted to seek a review.

[30] Ms. Hensel sought to distinguish this case from the Spanish IRS case on the basis that here, the process would have benefitted from earlier disclosure regarding the electric chair. She maintained that it is irrelevant that Canada did not contest the allegation regarding the electric chair. What is relevant is that although the Requestor submitted a sketch of the electric chair with his IAP application and referred to it in the course of his testimony, the Adjudicator did not ask him any questions about it. It was Ms. Hensel’s submission that had the Adjudicator been presented with documentary evidence to support the existence of the electric chair, he would have been more likely to make inquiries and findings of fact about it. Instead, he treated it as an aggravating factor, which, she contended, he was not entitled to do. Alternatively, she contended that if the allegation about the electric were treated as an aggravating factor, had the Adjudicator had additional evidence about the electric chair available to him, he could have used his discretion to award up to an additional 5% in points.

[31] Ms. Hensel similarly submitted that the documents produced as a result of St. Anne’s #1 point to a pattern of abuse by Mr. R that is strikingly similar in its details to the details of abuse described by the Requestor. As it was, the Requestor was unable to provide a coherent version of the abuse he claimed Mr. R perpetrated. The effect, she submitted, would have been to nearly double the points awarded to the Requestor, and to increase his compensation from $53,000 to between $86,000 and $105,000.

[32] In reply to Canada’s submissions, Ms. Hensel submitted that the fact the Requestor has received partial compensation through the Adjudicator’s award should not disentitle him to the benefits guaranteed by the IRSSA. She also argued that the Requestor brought the RFD within a reasonable time after receiving the Adjudicator’s decision and that because the Requestor did not seek to review that decision, the deadline for bringing a judicial recourse RFD did not apply in this case.

Canada’s Submissions

[33] In her submissions on Canada’s behalf, Ms. Coughlan submitted that the threshold for judicial recourse – one that has come to be known as the Schachter threshold [6] – has not been met, and that the Requestor’s RFD should be dismissed for want of jurisdiction. Ms. Coughlan further submitted that in any event, the RFD should be dismissed in that it is barred by the deadline set for seeking judicial recourse.

[34] The Schachter threshold limits judicial consideration of an IAP decision to very exceptional circumstances where there has been a failure by the Chief Adjudicator or his designate to comply with the IRSSA in the context of a final decision within the IAP (that is, one that is made on second review, or as it is also known, “re-review” of a hearing adjudicator’s decision). [7] The Schachter threshold has been reiterated by the Ontario Court of Appeal in the Spanish IRS case [8] and affirmed by the British Columbia Court of Appeal [9] and the Manitoba Court of Appeal. [10]

[35] In this case, however, the Requestor does not invite the court to find that the Chief Adjudicator or his delegate has failed to comply with the IRSSA. He did not seek any review of the Adjudicator’s decision. Accordingly, it was Ms. Coughlan’s submission that the because there was no decision of the Chief Adjudicator or his designate under review, the Schachter threshold for access to the Courts has not been met in this case.

[36] Ms. Coughlan further submitted that this case is indistinguishable from those underlying the RFD brought by IAP Claimant T-00178, which was one of the RFDs determined by Brown J. in Fontaine v. Canada (Attorney General), 2017 BCSC 946. There, another former St. Anne’s IRS student also sought to re-open his IAP claim on the basis of the documents produced as a result of my decision in St. Anne’s #1, including source documents such as the OPP documents and the revised reports. My colleague concluded that the Schacter threshold’s “very exceptional circumstances” requirement was not met because IAP Claimant T-00178’s claim was dismissed due to an adverse finding of credibility arising from a prior inconsistent statement. [11] The British Columbia Court of Appeal subsequently dismissed a motion to extend the time to appeal Brown J.’s order on the basis that there was no merit to the appeal. [12]

[37] Ms. Coughlan also noted that in N.N. v. Canada (Attorney General), [13] the British Columbia Court of Appeal endorsed aspects of this court’s decision in St. Anne’s #1, including that new evidence alone is insufficient to re-open a decided IAP claim, [14] and that judicial recourse should be granted on a case-by-case basis. [15] The ultimate question is whether there has been a miscarriage of justice. [16] The majority elaborated that when addressing that question in the context of a case involving new information, the following three factors should be considered: (1) whether the claimant has established a reasonable probability that the new information could be expected to affect the result; [17] (2) questions of fault for late disclosure and delays in acting on it; [18] and (3) whether the claimant is seeking further compensation or was denied any compensation at all. [19] In relation to the latter consideration, Ms. Coughlan pointed out that to date, judicial recourse has never been allowed in a case in which an IAP award was made.

[38] In addition, Ms. Coughlan essentially argued that there was not a case of a “more than theoretical miscarriage of justice”. In doing so, Ms. Coughlan stressed that the Requestor accepted the IAP award with independent legal advice from a lawyer other than the one who had acted for him throughout the process.

[39] Ms. Coughlan noted that at the hearing, the Requestor’s counsel advanced the allegations regarding the electric chair solely as aggravating factors and Canada’s representative took no issue with the contention that punishment on the electric chair constituted an aggravating factor. The allegations made in connection with the electric chair were well within the Adjudicator’s knowledge. While the Adjudicator did not specifically advert to the electric chair in his decision, he nonetheless found that aggravating factors existed in this case and assigned a 10% increase in points as a result. The Requestor does not point to any evidence in relation to the electric chair that would reasonably affect the result of his claim. Instead, he simply tries to recast these allegations in a manner that is different from how they were put forward at the hearing.

[40] Ms. Coughlan also noted that the Adjudicator did not accept the Requestor’s allegations regarding Mr. R because of internal inconsistencies in the Requestor’s explanation for the delay in making the claim. Those inconsistencies could only have been explained by the Requestor’s own testimony, but the Requestor failed to do so and the Adjudicator found the Requestor’s evidence unreliable in that respect. The fact of Mr. R’s criminal record is irrelevant to the credibility or reliability of allegations made against him.

[41] Taking everything into account, Ms. Coughlan submitted, it was within the Requestor’s constructive knowledge that further disclosure might be made in relation to IAP claims arising out of the operation of St. Anne’s IRS. In making this submission, she pointed to the fact that the court’s decision in St. Anne’s #1 was released in January 2014 and the Chief Adjudicator’s related notice to claimant counsel in March 2014. The disclosure was made into the IAP well before the Requestor received his award and acknowledged acceptance of the Adjudicator’s decision.

[42] Ms. Coughlan also pointed out that a recent decision of the Court of Appeal calls into question whether Canada breached any of its obligations under the IRSSA by refusing to produce the OPP documents prior to the issuance of the decision in St. Anne’s #1. In Fontaine v. Canada (Attorney General), [20], the Court of Appeal reached a conclusion from which it follows that the OPP Documents in Canada’s possession prior to the St. Anne’s #1 were subject to the deemed undertaking. The Court of Appeal further concluded that the deemed undertaking should not be lifted in relation to examination for discovery transcripts.

D. Analysis

Jurisdiction

[43] In implementing and administering the IRSSA, the Courts possess a robust supervisory jurisdiction. As has been recognized by the Supreme Court of Canada, that jurisdiction stems from the orders approving and implementing the IRSSA, and also from provisions in class action legislation such as the Class Proceedings Act, [21] and their inherent jurisdiction. [22] However, where judicial recourse is sought in relation to an IAP claim, that jurisdiction is much attenuated by the Schachter threshold, which limits the right to seek judicial recourse to very exceptional circumstances; that is, where the final decision of the Chief Adjudicator reflects a failure to comply with the terms of the IRSSA or the Courts’ implementation orders. [23]

[44] Ultimately, the court must respect the bargain struck by the parties in the IRSSA. It includes the IAP, which is a post-settlement claims adjudication process that permits review and re-review of an initial Adjudicator’s decision on certain limited grounds. [24] However, both reviews and re-reviews are on the record, with no new evidence permitted. [25]

Procedural Issue

[45] As recounted above, Canada has raised a procedural issue as to whether judicial recourse should be considered at all, given that the Requestor has never sought a review of the Adjudicator’s decision – let alone a re-review – and hence there has not been a final decision within the IAP on which judicial recourse may be considered. While Canada may well be right in taking this position, I prefer to determine this RFD on the issue of whether the exceptionality requirement set out it the Schachter threshold has been met in this case. In doing so, I do not depart from the reasoning of and deadline established by my colleague Brown J. in Fontaine v. Canada (Attorney General). [26] In this case, there has been no review or re-review.

Application of the Exceptionality Requirement

[46] I conclude that the exceptionality requirement is not met in this case.

[47] In establishing the Schachter threshold and interpreting it in the Spanish IRS case, the Court of Appeal has set a very high standard for judicial intervention in an IAP case. The exceptionality requirement protects the finality of the process.

[48] In essence, the Requestor seeks to have his IAP claim reopened on the basis that important information in the form of the OPP documents and the revised Narrative and POI reports was not available to him at the time of the hearing.

[49] However, that evidence would not be admissible even on a conventional fresh evidence test. As the Court of Appeal recently explained in St. Amand v. Tisi, [27] the party seeking to introduce the fresh evidence must show that the proposed evidence:

• Is credible;
• Could not have been obtained by reasonable diligence before trial or application; and
• If admitted, would likely be conclusive of an issue in the appeal.

The overriding criterion is that fresh evidence will be admitted only where it is in the interests of justice to do so. [28]

[50] In that case, the Court of Appeal elaborated as follows about the due diligence requirement:

[10] A failure to meet the due diligence requirement is not always a bar to admitting fresh evidence. There are, however, cases where a failure to exercise due diligence renders the admission of the fresh evidence not in the interests of justice: see e.g. Stekar v. Wilcox, 2017 ONCA 1010, at para. 27; and Mason v. Mason, 2016 ONCA 725, 403 D.L.R. (4th) 64, at para 197. The due diligence requirement plays a particularly important role in civil proceedings, where the need for finality is a principal consideration:

Most often, evidence offered on appeal seeks to place different facts before the appeal court than were considered by the court of first instance. In the typical case, the appellant asks the appeal court to consider the new evidence in combination with the evidence adduced in the lower court, and to arrive at different factual findings based on the enhanced evidentiary record. In essence, the appellant asks for a reconsideration of the facts based on evidence not adduced in the court below. Finality concerns, especially important in civil proceedings, demand a restrictive approach to the admissibility of evidence on appeal. The due diligence inquiry, an important consideration in determining whether to admit fresh evidence on appeal, reflects the restrictive approach taken to the admission of fresh evidence on appeal. [29]

[51] With the addition of the exceptionality requirement imposed by the Schachter threshold, it is apparent that the Requestor cannot succeed.

[52] In this RFD, the Requestor has placed heavy reliance this court’s decision in St. Anne’s #1. As I have previously pointed out, that decision needs to be read in conjunction with the Court of Appeal’s decision in the Spanish IRS case. [30] In addition, it must now be read in light of that court’s recent decision in Fontaine v. Canada (Attorney General). [31]

[53] There is force to Ms. Coughlan’s submission that the Requestor made informed choices throughout the process, with the benefit of counsel. That includes his decision to accept the IAP award on the basis of independent legal advice from a lawyer other than the one who had acted for him up to that point in the process. The Requestor’s conscious decision to accept the award militates against any conclusion that a more than theoretical miscarriage of justice arises in this case.

[54] Moreover, there is merit in Canada’s position that in advancing the position he does now in relation to the electric chair, the Requestor is trying to recast his case. In his IAP application, the Requestor advanced a claim of sexual abuse. He did not advance a claim of physical abuse. True, the Adjudicator had an inquisitorial role, but he cannot be faulted for failing to grant an award on the in relation to a case that was not pleaded.

[55] In relation to the allegation regarding Mr. R, I note that the Adjudicator did not disbelieve the Requestor, but was unable to conclude that his evidence was reliable enough to make an award under the IAP model of adjudication.

E. Conclusion

[56] The Request for Direction is dismissed. In recognition of the Requestor’s counsel’s efforts and very capable submissions in a difficult case, I nonetheless award the Requestor costs in the amount of $15,000.

PERELL J. Released: November 19, 2018

COURT FILE NO.: 00-CV-192059 DATE: 20181119 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, et al. Plaintiffs

• and – THE ATTORNEY GENERAL OF CANADA et al. Defendants

REASONS FOR JUDGMENT

Perell, J. Released: November 19, 2018

[1] St. Anne’s IRS closed on June 30, 1976 and was subsequently operated as a day school. [2] Fontaine v. Canada (Attorney General), 2014 ONSC 283 (“St. Anne’s #1”) [3] Fontaine v. Canada (Attorney General), 2015 ONSC 4061 (“St. Anne’s #2”) [4] Fontaine v. Canada (Attorney General), 2016 BCSC 2218 at para. 231; aff’d N.N. v. Canada (Attorney General), 2018 BCCA 105. [5] Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471. [6] Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471. [7] Ibid., paras. 53, 57-58. [8] Fontaine v. Canada (Attorney General), 2017 ONCA 26 (“Spanish IRS”). [9] N.N. v. Canada (Attorney General), 2018 BCCA 105. [10] The Attorney General of Canada v. J.W. and Reo Law Corporation et al., 2017 MBCA 54; leave to appeal granted, February 8, 2018 and judgment reserved, October 10, 2018: SCC Docket 37725. [11] Fontaine v. Canada (Attorney General), 2017 BCSC 946 at paras. 76, 80. [12] Tourville v. Fontaine, 2017 BCCA 325. [13] N.N. v. Canada (Attorney General), 2018 BCCA 105. [14] N.N. v. Canada (Attorney General), 2018 BCCA 105 at para. 168. [15] Ibid., at paras. 126, 157, 164. [16] Ibid., at para. 164. [17] Ibid., at para. 169. [18] Ibid., at para. 187. [19] Ibid. [20] Fontaine v. Canada (Attorney General), 2018 ONCA 421 (released May 7, 2018). [21] Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12. [22] See Canada (Attorney General) v. Fontaine, 2017 SCC 47 at paras. 31-33. [23] Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471 at paras. 53, 57. [24] See IRSSA, Schedule “D”, item III l (i)-(iv). [25] See IRSSA, Schedule “D”, item III l (v). [26] Fontaine v. Canada (Attorney General), 2016 BCSC 2218 at para. 231; aff’d N.N. v. Canada (Attorney General), 2018 BCCA 105. [27] St. Amand v. Tisi, 2018 ONCA 106. [28] St. Amand v. Tisi, 2018 ONCA 106, at para. 8. [29] Ibid., para. 10. [30] Fontaine v. Canada (Attorney General), 2017 ONCA 26. [31] Fontaine v. Canada (Attorney General), 2018 ONCA 421.