COURT FILE NO.: 00-CV-192059CP
DATE: 2019-11-14
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 ATHBASCA, 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 WESTMINISTER, 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, INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYANCITHE, 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:
▪ Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada
- Joanna Birenbaum, for National Centre for Truth and Reconciliation
HEARING: In Writing
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This decision concerns the request of the National Centre for Truth and Reconciliation (the “NCTR”) to be added as a party to a pending Request for Direction (“RFD”) brought by the Chief Adjudicator. The pending RFD concerns the disposition of what the Chief Adjudicator has termed “non-claim records” held by the Indian Residential Schools Adjudication Secretariat.
[2] The NCTR seeks leave to be added as a party under: (a) Rule 5.03 of the Rules of Civil Procedure;[^1] (b) Rule 13.01 of the Rules; (c) s. 12 of the Class Proceedings Act, 1992:[^2] , or (d) this Court’s jurisdiction under the terms of the Indian Residential Schools Settlement Agreement (the “IRSSA”).
[3] The Attorney General of Canada (“Canada”) opposes the NCTR’s request. It argues that the NCTR should not be added as a party or, alternatively, that this Court should bifurcate and defer some of the issues raised in the RFD and only grant the NCTR party status on the deferred issues, should they arise. No other party takes any position on this motion.
[4] For the reasons that follow, I would allow the NCTR’s motion and add it as a party to the RFD.
B. Factual and Procedural Background
1. The Non-Claim Records and the Chief Adjudicator’s RFD
[5] In an initial effort to compensate survivors for the profound harms they experienced through the Indian Residential School system, the Government of Canada established a voluntary alternative dispute resolution process (the “ADR Process”) in 2003.
[6] After the ADR Process, various individual and class actions brought by survivors in nine provinces and territories were eventually consolidated into a single action that culminated in the IRSSA. The IRSSA represents a comprehensive settlement of that class action.
[7] The IRSSA was approved by the Superior Courts in the nine provinces and territories and the agreement assigns the courts an ongoing role in the supervision and implementation of the agreement. Under the IRSSA, compensation takes two different forms: the Common Experience Payment, which provides a set amount to eligible claimants based on the amount of time they resided at an Indian Residential School, and the Independent Assessment Process (the “IAP”), which compensates individual survivors for sexual abuse, serious physical abuse, and other wrongful acts that they experienced.
[8] The Secretariat was originally established in 2003 to adjudicate claims from the ADR Process. After the IRSSA took effect, and pursuant to its Schedule D, the Secretariat’s role changed to providing support to the Chief Adjudicator in the effective implementation of the IAP. During both phases, the Secretariat managed various documents related to the resolution of specific claims, and managed the ADR Process and the IAP.
[9] The IAP is nearing its conclusion. The Chief Adjudicator’s current Completion Strategy for the IAP calls for the resolution of all remaining IAP claims by December 2020 and the closure of the Secretariat by March 2021. As a result, the disposition of the records held by the Secretariat has become an issue.
[10] The Chief Adjudicator classifies the records held by the Secretariat into three categories. The first category consists of “claim records.” These are the documents from individual ADR and IAP claims. The disposition of these documents was the subject of an RFD in 2014 that was finally resolved by the Supreme Court of Canada in Canada (Attorney General) v. Fontaine,[^3] which I shall refer to as the “Claim Records Decision”.
[11] The second category of documents is “government administrative records.” These documents relate to the Secretariat’s normal course of business. The pending RFD does not concern these documents.
[12] The third category contains all other records held by the Secretariat. The third category has been termed “non-claim records” by the Chief Adjudicator. These documents pertain to the operation, management, and oversight of the ADR Process and the IAP.
[13] In the pending RFD, the Chief Adjudicator has developed a proposal for the disposition of the non-claim records. He proposes to enter into an agreement with the NCTR to donate a collection of non-claim records that have archival value to the NCTR. The Chief Adjudicator further proposes that the agreement with the NCTR will cover the conditions for making the donated documents accessible to the public and that the NCTR will manage the records in accordance with the agreement and its governing legislation. The proposal envisions the Chief Adjudicator destroying other records that are not donated to NCTR when they are no longer needed for operational purposes.
[14] The Chief Adjudicator brought the pending RFD seeking this Court’s approval for his proposal. In the RFD, the Chief Adjudicator also identifies certain discrete categories of non-claim records that he believes present special consideration, and he seeks directions from this Court to resolve the special issues surrounding those documents.
[15] Canada opposes the Chief Adjudicator’s proposal. It intends to argue that the proposed disposition plan is unsupported by the terms of the IRSSA and is inconsistent with federal legislation, particularly the Library and Archives of Canada Act,[^4] which it claims exclusively governs the records at issue. Canada’s position bears some resemblance to the position it took in the Claim Records Decision RFD.
[16] In the pending RFD, amongst other issues, the Court will need to address two main sets of issues.
[17] First, there are the Jurisdiction Issues: Does this Court have jurisdiction to determine the disposition of the non-claim records? This issue will involve questions surrounding the appropriate interpretation of the IRSSA, whether the disposition of the records is governed by federal legislation, and whether the Secretariat holds the non-claim records as an independent entity.
[18] Second, there are the Disposition Issues: If this Court does have jurisdiction to determine the disposition of the non-claim records, how should it exercise that jurisdiction? This issue will require the Court to consider whether the records should be archived, where they should be archived, how the special categories of documents should be dealt with, whether the Chief Adjudicator’s proposal should be approved, and what over guidelines, terms, restrictions, or other considerations are appropriate or necessary.
2. The NCTR and the Pending RFD
[19] The NCTR is hosted by the University of Manitoba, in partnership with other universities, colleges, and Indigenous organizations. It was established pursuant to Schedule “N” to the IRSSA and is to serve as a repository and archive for the records collected by the Truth and Reconciliation Commission (the “Commission”), as well as other records relating to Indian Residential Schools. The NCTR was created on June 21, 2013. The collections of the NCTR are to be accessible to survivors, their families and their communities, as well as the general public, researchers, and educators.
[20] While the Commission’s mandate has ended, the NCTR continues to be open to the public. Those impacted by the Indian Residential School system and its legacy are permitted to continue to file personal statements with the NCTR in accordance with s. 10(c) of Schedule “N”.
[21] The NCTR’s practices, including issues regarding access, privacy, disclosure, and use of records, are governed by the National Centre for Truth and Reconciliation Act,[^5] as well as national and international research and archiving principles, protocols, guidelines, and best practices for Indigenous and human rights research and archiving.[^6]
[22] The NCTR also already has a role to play regarding IAP claim records. As a result of the Claim Records Decision, claimants may choose to have their IAP documents preserved and archived by the NCTR rather than having them destroyed.
C. Issue
[23] The issue on this motion is whether the NCTR should be added as a party to the Chief Adjudicator’s pending RFD.
D. The Positions of the Parties
[24] The NCTR states that it takes no position on the Jurisdiction Issues raised by the RFD and does not seek to make submissions on these issues or the proper interpretation of the IRSSA. However, it submits that it is a proper party and should be granted standing in relation to the Disposition Issues.
[25] The NCTR submits that it will be directly impacted by the determination of these issues. The NCTR points out that, if this Court approves the Chief Adjudicator’s proposal, it will become the repository of the non-claim records.
[26] If granted standing, the NCTR intends to adduce evidence and make submissions regarding its day-to-day operational, records management, and archiving practices and the applicable privacy laws. The NCTR submits that it is uniquely positioned to offer this evidence and submissions and that other parties will not, or cannot, do so.
[27] For its part, Canada agrees that the NCTR is a proper party on the Disposition Issues. In fact, it requests that this Court permit the NCTR to have intervener status on these issues, but only if these issues are bifurcated from the Jurisdiction Issues and deferred to a later hearing.
[28] Canada submits, however, that the NCTR cannot participate in the proceedings as they currently stand. It argues that the NCTR’s perspective is not necessary or relevant to the determination of the Jurisdiction Issues and that the NCTR’s participation would cause undue prejudice to Canada, given the limited time available for argument and the importance of the Jurisdiction Issues. Canada submits that until the Jurisdiction Issues are resolved, the Disposition Issues are purely hypothetical. If this Court finds that the Chief Adjudicator cannot donate non-claim records to the NCTR, the Disposition Issues will not arise and the NCTR’s participation will never become relevant.
E. Discussion and Analysis
[29] This Court has broad discretion to add a party to an RFD, which emanates from a number of sources. Firstly, Rule 5.03 of the Rules governs the joinder of necessary parties. It states:
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
(4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.
[30] Rule 13.01 deals with granting leave to intervene as an added party:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
[31] To be granted intervener status, a party must demonstrate that it can enhance the court’s ability to resolve the issues and that it will not simply be repeating another party’s evidence or arguments.[^7] The court will consider: (1) the nature of the case; (2) the issues that arise, (3) whether the issues are essentially private or whether they involve a public interest component; (4) the likelihood of the applicant making a useful contribution to the resolution of the issues; and (5) whether the applicant’s participation would be unfair to the immediate parties.[^8]
[32] In addition to these two specific rules, s. 12 of the Class Proceedings Act, 1992 grants the court broad powers to make any order it considers necessary to ensure the fair and expeditious determination of the class proceeding.[^9] Further, according to the terms of the IRSSA, the court can issue orders that are necessary to implement and enforce the agreement.[^10]
[33] This Court has already twice dealt with requests from the NCTR to be added as a party to previous RFDs. In Fontaine v. Canada (Attorney General), 2014 ONSC 3781, this Court granted the NCTR’s request and added it as a party to the RFD that dealt with the disposition of the IAP claim records and that eventually resulted in the Claim Records Decision. In that decision, I granted the NCTR standing as a party because it had an interest “that may be affected positively or negatively by the outcome” and, depending on the result, “responsibilities, and obligations may be imposed” on it (para. 26). Specifically, one possible outcome would assign the NCTR as the repository and archivist of the IAP claim records.
[34] I reached a different result about the involvement of the NCTR in Fontaine v. Canada (Attorney General), 2014 ONSC 5522. The underlying RFD in that case concerned the document production obligations of Canada and certain church entities under the IRSSA. I denied the NCTR’s request to be added as a party because it did not have any role, powers, or responsibilities with respect to document production under the IRSSA. Accordingly, it did not have a direct interest in the RFD, nor would it be adversely affected by the judgment. Further, it did not point to any evidence that it would provide that could not be adduced by other parties.
[35] In my view, the situation in the immediate case is more analogous to the situation that led to the Claim Records Decision that was decided by the Supreme Court of Canada, and, therefore, I would grant the NCTR standing as a party.
[36] As in the Claims Records Decision, the NCTR has a direct interest in the proceeding and may be positively or adversely affected by the outcome. Approval of the Chief Adjudicator’s proposal would see the non-claim records transferred to the NCTR. The pending RFD implicates the NCTR’s mandate as a repository and archive. Further, any orders this Court makes regarding conditions, directions, or guidance on the possible transfer of, or access to, the records, or any special subset of the records, has the potential to impose direct responsibilities or obligations on the NCTR.
[37] The NCTR is unique in its ability to provide evidence and submissions on its own archival approaches and practices. These points may prove useful to this Court in determining the appropriate disposition of the documents at issue.
[38] Canada does not appear to seriously contest these points. Indeed, it seems to accept that the NCTR is a proper party to make submissions on the Disposition Issues. Its argument is that the NCTR’s participation would be unfair and cause prejudice in a hearing of all the issues because of the limited time available to address the important Jurisdiction Issues. Canada submits that, if this Court were to add the NCTR as a party on the Disposition Issues, it should defer those issues until after resolution of the threshold Jurisdiction Issues.
[39] The court has inherent jurisdiction to bifurcate proceedings and divide issues to be heard separately, even without the consent of all parties.[^11] While parties have a presumptive right to have all issues determined together, bifurcation of issues may be necessary and in the interests of justice in limited and exceptional cases.[^12] The inherent jurisdiction to bifurcate proceedings should also be read in conjunction with this Court’s broad jurisdiction to make orders that it considers necessary for the fair and expeditious determination of the class proceeding or to implement and enforce the IRSSA.
[40] The Supreme Court of Canada, however, has warned that courts should avoid litigation by instalments because it creates the risk of multiple rounds of proceedings through multiple levels of court.[^13] This Court has held that bifurcation should be “exceptional” where there is “a clear benefit to be gained, in terms of time and expense” and that this burden is higher when a party objects to the bifurcation.”[^14].
[41] In my view, Canada has not succeeded in demonstrating that bifurcating the issues raised by this RFD is necessary or in the interests of justice. No other party consents to the bifurcation. Any benefit in focussing the initial hearing on the Jurisdiction Issues is largely outweighed by the serious risk of delay and a multiplicity of proceedings and appeals should it prove necessary to resolve the Disposition Issues.
[42] Further, I do not agree that the NCTR’s participation in the RFD, where it will only take a position on the Disposition Issues, will somehow “undermine the possibility of an appropriate and dedicated consideration” of the Jurisdiction Issues, as Canada claims.
[43] Again, the proceedings surrounding the IAP claim records are analogous. In those proceedings, issues were also raised regarding this Court’s jurisdiction to make particular orders regarding the documents at issue. Despite this fact, the NCTR was granted standing as a party to make submissions on the issues that impacted it, which did not impair the courts’ ability to resolve the other issues. Similarly, it is my view that the NCTR’s participation on the Disposition Issues would not cause serious prejudice to Canada or the proper disposition of the other issues raised by the RFD.
[44] Accordingly, I do not believe that I should bifurcate the issues on the RFD. As the NCTR is a proper party to assist this Court on the resolution of the Disposition Issues, I would grant it standing as a party on the RFD.
F. Conclusion
[45] For the reasons set out above, I would add the NCTR as a party to the RFD.
PERELL J.
Released: November 14, 2019
COURT FILE NO.: 00-CV-192059
DATE: 2019-11-14
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 DECISION ________________________________________
Perell, J.
Released: November 14, 2019
[^1]: R.R.O. 1990, Reg. 194. [^2]: S.O. 1992, c. 6. [^3]: 2017 SCC 47 [^4]: S.C. 2004, c. 11. [^5]: S.M. 2015, c. 2. [^6]: See Fontaine v. Canada, 2014 ONSC 4585 at para. 169. [^7]: Fontaine v. Canada (Attorney General), 2014 ONSC 3781 at para. 21; Ontario (Attorney General) v. Dieleman (1993), 1993 5478 (ON SC), 16 O.R. (3d) 32 (Gen. Div.); Jones v. Tsige (2011), 2011 99894 (ON CA), 106 O.R. (3d) 721 (C.A). [^8]: Fontaine v. Canada (Attorney General), 2014 ONSC 3781 at para. 23. [^9]: Fontaine v. Canada (Attorney General), 2014 ONSC 5522 at para. 15; Fontaine v. Canada (Attorney General), 2014 ONSC 3781 at para. 24. [^10]: Fontaine v. Canada (Attorney General), 2014 ONSC 5522 at para. 13; Fontaine v. Canada (Attorney General), 2014 ONSC 3781 at para. 24; Fontaine v. Canada (Attorney General), 2014 ONSC 283, at paras. 165-166. [^11]: Duggan v. Durham Regions Non-Profit Housing Corp., 2019 ONSC 3445 (Div. Ct.). [^12]: Duggan v. Durham Regions Non-Profit Housing Corp., 2019 ONSC 3445 at para. 38) (Div. Ct.). [^13]: Garland v. Consumers’ Gas Co., 2004 SCC 25, at para. 90. [^14]: Unwin v. Crothers (2005), 2005 23337 (ON SC), 76 O.R. (3d) 453, at para. 78; Central Sun Mining Inc. v. Vector Engineering Inc., 2015 ONSC 3320