Court File and Parties
Court File No.: C-21465-17 Date: 2019-03-13 Ontario Superior Court of Justice
Between: IAP Claimant H-15019, Plaintiff – and – P. James Wallbridge, Lindsy McNicoll, Wallbridge, Wallbridge and The Attorney General of Canada, Defendants
Counsel: Margaret Waddell and W. Cory Wanless, for the Plaintiff/Responding Party Catherine A. Coughlan and Brent Thompson, for the Defendant/Moving Party, The Attorney General of Canada William E. Pepall, for the Defendant/Moving Party, Lindsy McNicoll
Heard: January 9, 2019
Decision on Motion
R.D. GORDON, J.
Overview
[1] The defendant the Attorney General of Canada (“Canada”) says this action is an abuse of process and must be dismissed. In the alternative it seeks a stay of this action for a period of time during which the plaintiff may seek leave to proceed from an Administrative Judge.
Background
[2] The following description of the background of this matter is largely as contained and referenced in the factum of the plaintiff.
[3] In 2006, the signing of the Indian Residential Schools Settlement Agreement (“IRSSA”) resolved most of the outstanding litigation arising from the manner in which thousands of First Nations, Metis and Inuit children were treated in Canada’s Indian Residential Schools.
[4] One aspect of the IRSSA is the Independent Assessment Process (“IAP”), a non-adversarial, out-of-court adjudicative process created to resolve claims of sexual abuse, serious physical abuse, and other wrongful acts that have caused psychological harm to survivors of Indian Residential Schools.
[5] The IRSSA sets out the manner in which the IAP operates and imposes on Canada certain contractual obligations to produce documents and information for use in it. In particular, Canada must:
(a) Search for, collect and provide a report about the alleged abusers of each IAP claimant (“POI Reports”), to include any allegations of physical or sexual abuse committed by such persons;
(b) Gather documents about the residential school the claimant attended, and write a report summarizing those documents (“IRS Narrative”); and
(c) Add to the IRS Narrative as additional documents are found that mention sexual abuse by individuals other than those named by the claimant.
[6] These documents are to be provided to the IAP adjudicator in advance of a claimant’s hearing and are to be made available to the claimant as well. The adjudicator can use the information to question the claimant and for the purposes of making findings of fact and credibility. Canada is the keeper of the vast majority of relevant documents, and full and complete disclosure was reasonably thought to be necessary to ensure a fair hearing for each claimant and a just result in each claim.
[7] St. Anne’s Indian Residential School (“St. Anne’s”) was located in Fort Albany, on James Bay. In 1992 the Ontario Provincial Police began a four year investigation into St. Anne’s during which it received some 992 statements from between 700 and 750 people. Charges were laid against seven former employees of the school and all but one were convicted of some charges. In all, the OPP amassed approximately 12,000 documents in the course of its investigation.
[8] In the year 2000, over 150 former students of St. Anne’s represented by the co-defendants in this action filed civil claims in Cochrane, Ontario in connection with their mistreatment at the school. Canada was a defendant in those actions. In the context of those actions an order was made on August 1, 2003, that counsel for the parties may inspect and copy the contents of the OPP file of the investigation of St. Anne’s relating to the plaintiffs referred to therein. It was pursuant to this order that Canada came to be in possession of copies of many, if not all, of the OPP documents. Also in the context of these claims, Canada came to possess transcripts of at least some of the criminal proceedings against former employees of St. Anne’s.
[9] The plaintiff is a survivor of St. Anne’s. He was subjected to repeated and grievous sexual and physical abuse while in attendance there. He was not among the plaintiffs in the actions brought in Cochrane. He sought compensation through the IAP for the abuses he suffered. His claim was heard in May of 2013, with final submissions made on July 25, 2014.
[10] On January 14, 2014, in a case referred to as St. Anne’s RFD-1 (Fontaine v. Canada (Attorney General), 2014 ONSC 283), the Eastern Administrative Judge, Justice Perell, found that Canada had failed in its disclosure obligations relating to the OPP documents and the transcripts in its possession. He also found that Canada had failed to produce an accurate and complete IRS Narrative Report and POI Reports for St. Anne’s. Appropriate remedial orders were made.
[11] When closing submissions were made in the plaintiff’s IAP, Canada had still not produced the required documents to him or the adjudicator or made appropriate revisions to the IRS Narrative for St. Anne’s or the POI Reports relating to its employees. Accordingly, his IAP claim proceeded and was decided without the benefit of a proper historical record and without key documents and reports that would have corroborated his testimony.
[12] Without these documents his evidence was found not to be sufficiently reliable to approve his claim. This decision was upheld on review, which again was conducted without the benefit of the disclosure required of Canada.
[13] The plaintiff’s position is that his experience of having to testify about and relive the abuse suffered by him only to have his claims dismissed was a devastating psychological blow that rendered him depressed and suicidal.
[14] He eventually retained new counsel who was able to secure a re-hearing of his IAP claim with appropriate disclosure by Canada. At this hearing, with an updated IRS Narrative and POI Reports, the plaintiff’s evidence was accepted and he was awarded significant compensation.
[15] The plaintiff’s action is not for the harms suffered at St. Anne’s. He acknowledges that he has already received all compensation to which he is entitled for those injuries. This action is for compensation for the additional harms he says he suffered because of the trauma experienced during the IAP. He says that this trauma was caused at least in part by Canada not having met its disclosure obligations.
[16] Canada asserts the following grounds for dismissal of the action:
- The action is an abuse of process because the Plaintiff has released Canada from all further claims related to his attendance at St. Anne’s.
- The action is an abuse of process because it attempts to re-litigate matters that have already been decided by the court.
- The court order which approved the implementation of the IRSSA provides that no suit can be brought against Canada in relation to its discharge of responsibilities under the IRSSA without leave of the court and no such leave for this action has been sought or obtained.
- That this action must be brought before an Administrative Judge pursuant to both the Approval Order and the Implementation Order and in accordance with the Court Administration Protocol contained therein.
Applicable Legal Principles
[17] Canada’s motion is brought under rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:
21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court.
[18] Canada has rested its arguments on the plaintiff’s claim being an abuse of process.
[19] As confirmed by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, judges have an inherent and residual discretion to prevent an abuse of the court’s process. The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would bring the administration of justice into disrepute. It is described as a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.
Analysis
1. The Plaintiff’s Release of Canada
[20] Canada takes the position that as an IRSSA class member who availed himself of the compensation processes thereunder, the plaintiff is deemed to have released all claims against Canada relating to his attendance at St. Anne’s. The pertinent release provisions as contained in the Approval Order of the court are as follows:
[15] Subject to the provisions of this Agreement…each Class Member…have released and shall be conclusively deemed to have fully, finally and forever released the Defendants…from any and all actions…of every nature and kind available, asserted or which could have been asserted whether known or unknown…including for damages…which they ever had, now may have or may have hereafter, directly or indirectly or any way relating to…an Indian Residential School…
[18] …A Class Member who makes any claim or takes any proceeding that is subject to this paragraph shall immediately discontinue such claim or proceeding and this paragraph shall operate conclusively as a bar to any such action or proceeding.
[21] I do not agree that the cause of action asserted by the plaintiff is released by virtue of these provisions. On a plain reading of paragraph 15 of the Approval Order, the release of causes of action is restricted to claims that have been asserted or could have been asserted, that is, causes of action arising out of factual situations which had already come to pass when the Approval Order was signed. It could not and does not release causes of action or claims arising out of factual situations that had not yet occurred, even if in some way related to an Indian Residential School.
[22] Even if I am incorrect in this interpretation of the release provisions, it is my view that the release of all claims relating to compliance by Canada of its obligations under the IRSSA could not reasonably have been in the contemplation of the parties. Surely, claimants cannot, by the same agreement that imposes obligations on Canada, be taken to have released it from those very obligations.
2. Re-litigation of Earlier Claims
[23] Canada is of the view that the plaintiff’s claims in this action have already been fully adjudicated before the Eastern Administrative Judge and the Ontario Court of Appeal.
Proceedings before the Eastern Administrative Judge
[24] A proceeding taken before an Administrative Judge pursuant to the Implementation Order of Justice Winkler dated March 8, 2007 is known as a Request for Directions (“RFD”). There have been various complex RFD’s brought in this matter. Distilled to their essence, the relevant RFD’s may be summarized as follows.
[25] RFD #1 was heard in December of 2013 and resulted in the decision of Justice Perell dated January 14, 2014. In this RFD the Applicants (one of whom was the plaintiff herein) sought, among other things, an order requiring Canada to obtain and produce the OPP documents concerning the criminal investigation of St. Anne’s and transcripts from civil and criminal proceedings that were in its possession. The Applicants also sought an order requiring Canada to amend the historical Narrative and POI Reports relating to St. Anne’s. In his decision on this RFD Justice Perell made the following finding: “Canada has too narrowly interpreted its disclosure obligations. I do not need to decide whether Canada did this in bad faith, and I rather assume that its officials mistakenly misconstrued their obligations and misread the scope of their obligations. That said, in my opinion, there has been non-compliance, and Canada can and must do more in producing documents about the events at St. Anne’s.” He ordered Canada to produce, by June 30, 2014, the OPP documents in its possession and the transcripts of criminal or civil proceedings about abuse at St. Anne’s that were in its possession. He also ordered Canada to revise its Narratives and POI Reports for St. Anne’s.
[26] In RFD #1 Canada argued that the deemed undertaking rule prevented disclosure of the documents in its possession because they had been obtained pursuant to an order in civil proceedings in Cochrane which pre-dated the IRSSA. Justice Perell held that by its express language, the deemed undertaking rule only applies to proceedings other than the proceeding in which the evidence was obtained. Relying on Article 11.01 of the IRSSA, he found that the proceedings that culminated in the IRSSA included or were the same as the civil proceedings associated with the order obtained in the proceedings in Cochrane. Alternatively, he found that the public interest in disclosing the OPP documents outweighed the public interest in the efficient conduct of civil litigation and any privacy interest of the parties to the litigation.
[27] RFD #2 (Fontaine v. Canada (Attorney General), 2015 ONSC 4061) was heard on June 9, 2015, and decided on June 23, 2015. In this decision, Justice Perell found that the Narratives and the POI Reports for St. Anne’s still did not comply with the requirements of the IRSSA or his order in RFD #1. He ordered Canada to revise the Narratives and POI Reports and provide the Indian Residential School Adjudication Secretariat un-redacted copies of any court records, including transcripts and pleadings that were at any time publicly available and, upon request, to claimants or their lawyers for IAP hearings about St. Anne’s.
[28] RFD #3 (Fontaine v. Canada (Attorney General), 2017 ONSC 2487) was heard on March 24, 2017, in writing. In this RFD, the plaintiff herein was the Applicant. He sought various relief including payment of aggravated and/or punitive damages, and any other proper remedies for breach of the IRSSA, for IAP Claimants prejudiced by Canada’s failure to make the required documentary disclosure to the IAP. The thrust of the alleged breach by Canada was that it had failed to disclose transcripts from examinations for discovery conducted in a number of civil proceedings relating to abuse at St. Anne’s and was therefore in breach of the disclosure order made in RFD #1. Justice Perell ordered a hearing in writing to first determine whether Canada was in breach of its disclosure obligations as framed by Applicant. He found, in his decision dated April 24, 2017, that Canada had not breached its disclosure obligations by refusing to produce transcripts for discovery. He held that insofar as his order of January 14, 2014 required production of transcripts in “civil proceedings”, it was meant to refer only to proceedings where privilege and confidentiality issues did not apply. He pointed out that transcripts from examinations for discovery are protected by the deemed undertaking rule and can only be used in subsequent proceedings in very limited circumstances. He was not prepared to lift the deemed undertaking rule in the circumstances of this case. Having determined that Canada was not in breach of its disclosure obligations as alleged by the Applicant, he did not go on to consider possible remedies.
The Ontario Court of Appeal Decision
[29] Justice Perell’s decision in RFD #3 was appealed to the Ontario Court of Appeal. The appeal was dismissed. In its decision Fontaine v. Canada (Attorney General), 2018 ONCA 421, the court concluded there was no basis to interfere with Justice Perell’s conclusions that Canada did not breach its disclosure obligations in refusing to produce the transcripts from examinations for discovery held in the Cochrane actions.
[30] One of the arguments advanced by the Appellant (the plaintiff in this action) was that the deemed undertaking rule did not apply because the actions in which the transcripts were produced constituted the same proceedings as IAP’s under the IRSSA as had been determined by Justice Perell in RFD #1. Dealing with that argument, the court wrote the following:
[45] …I do not agree that any and all IAPs of St. Anne’s survivors are the “proceeding in which the evidence was obtained”, within the meaning of r. 30.1.01(3). The discovery evidence at issue was obtained in 62 distinct civil actions instituted in Cochrane by 154 survivors of St. Anne’s. H-15019 was not a plaintiff in any of the Cochrane Actions. He argues that the evidence of a survivor obtained in a civil proceeding commenced by that survivor can be used for the purpose of an IAP of a different survivor because they are the same proceedings. In my view, they are clearly not the same proceedings. They involve different claimants. To the extent that the administrative judge concluded otherwise in RFD-1, I respectfully disagree with him.
Analysis
[31] Canada argues that the plaintiff’s claim of breach of contract and for damages resulting therefrom was dismissed by both by the court in RFD #3 and by the Court of Appeal and therefore cannot be re-litigated in this action.
[32] I am not entirely in agreement. The plaintiff’s claims in this action arise, in part, out of Canada’s failure to fulfill its disclosure obligations under the IRSSA, and in particular, Canada’s failure to produce what are referred to in the statement of claim as the “Cochrane Documents”, therein defined as “the evidence generated/collected during proceedings for over 150 St. Anne’s Survivors who had brought actions prior to the IRSSA”.
[33] As noted above, the RFD’s dealt with two separate aspects of the Cochrane Documents: (1) The OPP documents and transcripts of proceedings in the possession of Canada; and (2) The transcripts from examinations for discovery in the possession of Canada. With respect to the OPP documents and transcripts of proceedings, Justice Perell specifically found in RFD #1 that Canada had not met its disclosure obligations. In RFD #1 the plaintiff made no request for damages arising out that non-disclosure. Indeed, the effects of that non-disclosure could not then have been known because the plaintiff’s IAP claim had not then been completed or ruled upon.
[34] However, insofar as the Cochrane Documents included transcripts from examinations for discovery, the court in RFD #3 held that Canada was not in breach of the IRSSA by refusing to disclose them. That decision was upheld by the Court of Appeal. The plaintiff is not entitled to have that issue litigated again.
[35] Canada also argues that the Court of Appeal effectively overturned Justice Perell’s determination in RFD #1 that the OPP documents were not subject to the deemed undertaking rule, thereby implying that Canada was, in fact, not in breach of its disclosure obligations as originally determined in RFD #1. In my view, for the reasons which follow, the issue was not resolved by the Court of Appeal with sufficient clarity to render this proceeding an abuse of process or res judicata.
[36] To begin with, the context in which the Court of Appeal considered the issue was considerably different than the context in which the decision was made in RFD #1 because: (a) The documents which were the subject of the two proceedings were very different. In RFD #1 the focus was primarily on documents arising from an independent OPP investigation that had previously been ordered produced in a joint order affecting over 150 plaintiffs in over 60 actions. In RFD #3 and in the Court of Appeal, the focus was on transcripts from discoveries conducted in each of those actions separately and privately. (b) In RFD #1 there were 60 applicants along with the Truth and Reconciliation Commission requesting the documents, collectively seeking, among other things, truth, healing and reconciliation. In RFD #3 and in the Court of Appeal there was a single claimant pursuing disclosure for the purpose of corroborating his IAP claim.
[37] Second, in RFD #1 there was an alternate finding that even if the deemed undertaking rule applied to the documents it should, in the interests of justice, be abrogated. In RFD #3 and in the Court of Appeal, there was a specific finding that the interests of justice did not warrant abrogation of the deemed undertaking rule, and no suggestion that the court in RFD #1 had been incorrect in its decision on that issue.
[38] Third, nowhere in the Court of Appeal decision is it stated or suggested that Canada was not in breach of its disclosure obligations under the IRSSA, as found by Justice Perell in RFD #1.
3. The Requirement of Leave
[39] Paragraph 30 of the Approval Order provides that no person may bring any action or take any proceedings against, among others, the Trustee, for any matter in any way relating to the Agreement, the administration of the Agreement or the implementation of the judgment, except with leave of the court.
[40] In the IRSSA, the term “Trustee” is defined to mean Her Majesty the Queen in Right of Canada as represented by the incumbent Ministers from time to time responsible for Indian Residential Schools Resolution and Service Canada.
[41] Canada is of the view that because Trustee is defined as Her Majesty the Queen in Right of Canada, leave is required to bring this proceeding.
[42] I disagree. In my view, insofar as Canada is concerned, the requirement for leave provided in paragraph 30 of the Approval Order is restricted to issues arising out of Canada’s role as Trustee.
[43] Canada, defined in the IRSSA to mean the Government of Canada and referred to in the IRSSA as “Canada” or the “Government”, has several different and sometimes conflicting roles under the IRSSA.
[44] One of its roles is as “Trustee”. In this capacity it is assigned specific duties under Article 10 of the IRSSA and Schedule I thereto (the Trust Agreement) directed primarily, if not exclusively, to developing systems and procedures to process and pay Common Experience Claims.
[45] Paragraph 30 of the Approval Order requires leave to proceed against a number of administrative bodies created under the IRSSA, including the Trustee. It does not impose an obligation to obtain leave to proceed against Canada as defined in the IRSSA or any of the other Defendants. On its face, it does not require leave to proceed against Canada unless the action is against Canada in its capacity as Trustee or as a member of one of the listed committees.
4. Must this Action be Brought Pursuant to the Court Administration Protocol?
[46] Paragraph 13 of the Approval Order of Justice Winkler dated December 15, 2006, provides that the court shall supervise the implementation of the Agreement and the judgment, and may issue such orders as are necessary to implement and enforce the provisions of the Agreement and the judgment.
[47] Canada takes the position that an action for damages arising from a breach of Canada’s disclosure obligations under IRSSA in effect seeks an order implementing or enforcing the provisions of the IRSSA and must therefore be brought pursuant to the Court Administration Protocol established under the Implementation Order of Winkler J., dated March 8, 2007.
[48] In my view this action against Canada does involve both the implementation and enforcement of the IRSSA. It involves implementation of the IRSSA because it requires consideration of the disclosure obligations contained within it. It involves enforcement of the IRSSA because it seeks a remedy arising from an alleged breach of the contract. An award of damages for breach of a contract is a form of enforcement of that contract. All the more so when, as in this case, punitive damages are sought.
[49] Furthermore, the breach of the IRSSA relied upon by the plaintiff has already been the subject of a decision by the Administrative Judge in RFD #1. Having the action proceed outside of the Court Administration Protocol and with potential for findings that may be inconsistent with that decision should be avoided.
[50] It follows that this action should properly have been brought by way of Request for Directions before the Eastern Administrative Judge.
Conclusion
[51] I have determined that this action, insofar as it relates to Canada, should have been initiated before the Eastern Administrative Judge pursuant to the Court Administration Protocol.
[52] The appropriate remedy is complicated by the fact that this action is brought against Canada and against solicitors who initially acted for the plaintiff in the IAP and against whom the action is properly brought outside the provisions of the IRSSA and its Implementation Order.
[53] If the action against Canada must be initiated pursuant to the Court Administration Protocol, it would make sense that the action involving the remaining defendants somehow follow along with it. I note that in at least one case a Supervisory Judge has assumed jurisdiction of an action that involved issues and parties both within and without the IRSSA [See Daniels v. Daniels 2009 MBQB 192]. It remains unclear how this might be effected in this case.
[54] In these circumstances it is appropriate to stay this action as against Canada pending further Order of the Eastern Administrative Judge and it is ordered accordingly.
[55] If the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.