Court File and Parties

COURT FILE NO.: 00-CV-192059 DATE: 2019/01/07 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:

• Diane Soroka for Independent Counsel
• Joanna Birenbaum for the National Centre for Truth and Reconciliation
• Stuart Wuttke and Jeremy Kolodziej for the Assembly of First Nations
• Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada

PERELL, J.

Costs Endorsement

A. Introduction

[ 1 ] This costs endorsement follows my decision in Fontaine v. Canada (Attorney General), 2018 ONSC 6381. That decision concerned a Request for Direction (“RFD”; “RFDs” in the plural) brought by Independent Counsel, one of the groups of plantiffs’ counsel that signed the Indian Residential Schools Settlement Agreement (or “IRSSA”). Broadly put, the RFD sought clarification as to the privacy protections applicable to the National Centre for Truth and Reconciliation (the “Centre”) in its treatment of the documents and the records it received from the now defunct Truth and Reconciliation Commission (the “Commission”). [ 2 ] In determining the RFD, I concluded that it would be unnecessary and wrong to grant the relief sought by Independent Counsel, who contended that the Centre is bound by the privacy provisions of the IRSSA that bound the Commission; i.e. , that the Centre is bound by the federal Privacy Act, the federal Access to Information Act and other privacy restrictions found in the IRSSA that bound the Commission. [ 3 ] After reaching that conclusion, I invited submissions from Independent Counsel, the Centre, and the Assembly of First Nations (the “AFN”) as to why their reasonable costs should be paid by Canada.

B. Submissions

Centre

[ 4 ] The Centre seeks its costs as a public interest litigant. It submits that a substantial or full indemnity award in its favour would properly acknowledge its necessary participation in the RFD in order to resolve an outstanding interpretive issue arising from the IRSSA’s administration, without depleting the Centre’s operational funds in order to do so. Those funds come from Canada (which has committed to providing the Centre with $10,000,000 over a seven year period) and the University of Manitoba (which provides variable funding annually). The Centre’s funding does not include a budget line for litigation. [ 5 ] The Centre denies that the RFD was precipitated by its mistake in posting the La Tuque Indian Residential School Narrative on the Centre’s website. This school narrative referred to source documents, which if accessed through the Centre’s website would have revealed the name of an alleged perpetrator and the names of the four living sexual abuse survivors. [ 6 ] The Centre seeks a total of $43,948.67.

AFN

[ 7 ] The AFN provided the perspective of First Nations in relation to the issues raised in the RFD. The AFN points out that the court acted on its balanced and helpful submissions. In fact, a paragraph from the AFN’s factum dealing with school narratives was incorporated into the court’s decision and I described the AFN’s argument as “thoughtful, eloquent and balanced”. [ 8 ] In submitting that a special regime applies to costs awards made in connection with RFDs concerning the IRSSA, the AFN refers to Fontaine v. Canada (Attorney General), 2014 ONSC 3059. There this court accepted that the IRSSA provides special context and a plenary jurisdiction to do what is right and fair. This can include granting an award beyond a partial indemnity. In a subsequent case this court held that costs can be awarded against Canada even though it was not an unsuccessful party. [ 9 ] The AFN seeks $27,758.57 (full indemnity) or $18,043.07 (partial indemnity).

Canada

[ 10 ] Canada submits that no costs order should be made against it. Canada takes the position that although the Centre was a successful party in the RFD’s determination, the catalyst for that litigation was the Centre’s “acknowledged mistake” in posting the unredacted La Tuque school narrative on its website. [ 11 ] Citing Fontaine v. Canada (Attorney General), 2014 ONSC 5474, Canada further submits that “ the submissions provided no intelligible justification for awarding costs against Canada” The AFN was unsuccessful in its support of Independent Counsel’s position and in relation to its own unsuccessful requests . In its submission on the RFD, the AFN sought significant changes to the Centre’s mandate via a court order to satisfy the concerns of Independent Counsel. [ 12 ] Canada points out that in Fontaine v. Canada (Attorney General), 2018 ONCA 693, the Court of Appeal dismissed an IRSSA-related appeal and rejected the appellants’ request for costs on the basis of public interest considerations . Canada submits that a consideration of the factors set out in Rule 57.01 (1) of the Rules of Civil Procedure weighs against making any award against it, and that costs ought to follow the event. [ 13 ] Canada submits that if anyone should be required to pay costs, it should be Independent Counsel, who brought the RFD but did not succeed in it. [ 14 ] Finally, Canada takes the position that the awards sought by the Centre and the AFN are unreasonable. While arguing that no costs award should be made, Canada submits that a more appropriate award for the AFN would be $7,708.57 and that the Centre should receive no more than $ 5,291.14 .

Independent Counsel

[ 15 ] Although invited to make submissions within 20 days of the release of the decision dismissing its RFD ( i.e. , 20 days from October 25, 2018), Independent Counsel did not do so. However, in submissions filed on December 18, 2018, Independent Counsel took no position as to the amount, if any, of costs that Canada should be required to the Centre or the AFN, but submitted that no costs award should be made payable by Independent Counsel.

C. Analysis

[ 16 ] There is substantial force to Canada’s submission that no costs award should be made against it. Canada was required to respond, provided helpful submissions and was successful in the RFD. In the context of the RFD, it is blameless. [ 17 ] I conclude, however, that there is jurisdiction to require Canada to pay costs, but that this results not from the usual considerations including the position(s) Canada took in the litigation, but from its position as the IRSSA’s administrator. In another case dealing with the administration of the IRSSA (and in particular, the enhanced notice program in relation to Independent Assessment Process claimants’ rights to have their records archived at the Centre), this court held “that there is both jurisdiction and a justification to make Canada the payor of costs in the immediate case notwithstanding that Canada was, to use its double-negative description, not unsuccessful”. [ 18 ] The Centre, on the other hand, is not blameless. While the Centre’s acknowledged mistake in posting the unredacted La Tuque school narrative on its website may not have been the “proximate cause” for the bringing of the RFD as Canada has submitted, that mistake was nonetheless a central feature in Independent Counsel’s submissions. [ 19 ] In addition, the amount sought by the Centre is unreasonable. It includes a claim for 124.6 hours of counsel time, an expert’s fees when an expert was unnecessary and disbursements for a client representative to attend the hearing of the RFD. This court has previously characterized a costs request by the Centre as excessive. [ 20 ] In the circumstances, I make no costs award in the Centre’s favour. [ 21 ] While the AFN took positions that supported those taken by Independent Counsel, it was essential that someone spoke on behalf of First Nations in the determination of the issues pertaining to the privacy regime governing the Centre. As noted in the decision in relation to the RFD, the AFN’s submissions were helpful and balanced. Taking into account the points Canada has made about the AFN’s change in position respecting the Centre’s mandate and about the amount requested, I award the AFN $16,000.00 in costs, to be paid by Canada.

C. Conclusion

[ 22 ] An order will issue, directing Canada to pay the AFN $16,000.00 by way of partial indemnity for the costs incurred in connection with the RFD. I decline to make any other costs award.

PERELL J. Released: January 7, 2019