Court File and Parties

COURT FILE NO.: 00-CV-192059CP DATE: 2020/04/06 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 J. Boies Parker, Q.C. and John Trueman for the Chief Adjudicator
• Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada
• Joanna Birenbaum, for National Centre for Truth and Reconciliation
• Stuart Wuttke for the Assembly of First Nations
• No one for the National Administration Committee

HEARD IN WRITING

PERELL, J.

ENDORSEMENT SETTLING ORDER

A. Introduction

[1] On January 20, 2020, I released reasons for judgment in connection with a Request for Direction (“RFD”) brought by the Chief Adjudicator of the Independent Assessment Process (“IAP” [1]) created by the Indian Residential Schools Settlement Agreement (“IRSSA”) [2]. The RFD was heard on December 12, 2019 and was concerned with how the Chief Adjudicator proposed to dispose of what were termed “Non-Claim Records” pertaining to the IAP that are in the possession of the administrative apparatus created to assist the Chief Adjudicator, the Indian Residential Schools Adjudication Secretariat.

[2] This was the second RFD I have heard pertaining to the disposition of documents related to the IAP. The first was concerned with documents produced and prepared for the resolution of claims made in the IAP (referred to then as “IAP Documents”, now as “Claim Records” [3]). The first RFD arose because of concerns relating to the privacy interests of IAP claimants. The outcome was an Order dated August 6, 2014 that was expressly made final and in rem respecting those records. This Order has come to be known as the “In Rem Order”. [4]

[3] In the result of the second RFD, I dismissed the Chief Adjudicator’s RFD concerning the Non-Claims Records, but I directed Canada by no later than June 30, 2020 to bring an RFD for court approval of a proposal for the archiving of copies of Non-Claim Records with the National Centre for Truth and Reconciliation (“NCTR”).

[4] In the more than two months following release of the Reasons, those who participated in the hearing of the RFD were unable to agree on the form of the Order. The principal disagreements were between the Chief Adjudicator and Canada on one hand, and the NCTR and the Assembly of First Nations (“AFN”) on the other. Although it participated in the hearing of the RFD, the National Administration Committee (“NAC” [5]) did not submit a preferred form of Order, nor did it provide any submissions concerning the draft Orders submitted by the Chief Adjudicator and the NCTR.

[5] As a result, Court Counsel [6] established a process for the exchange of draft Orders and submissions, on the basis of which I would settle the Order. In this endorsement, I summarize those submissions, resolve the issues that the RFD hearing participants have raised and explain why I have determined that an Order should issue in the form set out in Appendix 2.

B. Background to the Dispute about the Form of the Order

1. The Parties are Unable to Settle the Form of the Order

[6] Counsel for the Chief Adjudicator initiated the process by circulating a draft Order on February 5, 2020. On Canada’s behalf, Mr. Thompson responded, copying counsel for all RFD participants. Mr. Thompson suggested that to the extent possible, the draft Order should adopt language from the Reasons. On February 28, 2020, Mr. Trueman, counsel for the Chief Adjudicator, circulated a further draft incorporating the changes suggested by Mr. Thompson.

[7] On March 13, 2020, Mr. Trueman circulated three versions of a further proposed draft Order: a clean copy, a copy keyed to paragraphs from the Reasons, and a redlined version showing changes made since the previous draft Order was circulated on February 28, 2020. Mr. Trueman noted that the form of Order proposed by the Chief Adjudicator was acceptable to Canada but that he had not received feedback from the AFN or the NAC on either the February 5 or the February 28 drafts of the Order. Mr. Trueman noted, however, that the NCTR may still have some concerns with the form of the Order, and he requested that Court Counsel establish a process and timelines for settling the Order. Court Counsel did so on March 15, 2020, in an email to all of the RFD hearing participants.

[8] In fact, the NCTR did have concerns regarding the Chief Adjudicator’s draft Order. As reflected in Ms. Birenbaum’s March 24, 2020 letter, the NCTR’s submissions were threefold. Those submissions and Ms. Birenbaum’s proposed changes to the Chief Adjudicator’s draft Order – which on behalf of the AFN, Mr. Wuttke supported and adopted – are set out below, along with the responses to them made on behalf of the Chief Adjudicator and Canada.

2. The NCTR’s Proposed Changes to the Draft Order

(a) Privileged Documents Subject to Destruction by the Chief Adjudicator (Chief Adjudicator’s Draft Order, Paragraph 5)

[9] The NCTR took issue with paragraph 5 of the Chief Adjudicator’s draft Order, arguing that it is inconsistent with subparagraph 10(c) of the Reasons, which states that the Chief Adjudicator may destroy “the Chief Adjudicator’s documents subject to solicitor-client privilege”.

[10] Ms. Birenbaum submitted that because litigation privilege expires on the termination of the litigation, the direction in subparagraph 10(c) of the Reasons must be taken to be related specifically to solicitor-client privilege and not to litigation privilege. Ms. Birenbaum disagreed with Canada’s suggestion that paragraph 5 should be amended to refer generically to “privileged” records, arguing that the Order should be specific as to the types of privileged records that the Chief Adjudicator may destroy.

[11] In addressing the NCTR’s submission concerning the treatment of privileged records in paragraph 5 of the Chief Adjudicator’s draft Order, Mr. Trueman submitted this court’s disposition of the Non-Claim Records is predicated on the supervisory role of the nine provincial and territorial courts that approved the IRSSA in implementing the IRSSA, a role that is referenced in paragraphs 177 and 179-180 of the Reasons. Mr. Trueman pointed out that the Chief Adjudicator’s litigation privileged records would not normally be administered by Canada, a separate and sometimes opposing party in the litigation arising from the IRSSA’s administration. He pointed out that it is not the norm for a party’s litigation work product to be managed by another party to that litigation, whether during or after the conclusion of the litigation. Mr. Trueman submitted that paragraph 5 of the Chief Adjudicator’s draft Order includes “litigation privilege” to reflect this reality.

[12] Canada continued to support the Chief Adjudicator’s draft Order, subject to a possible modification of paragraph 5. Ms. Coughlan for Canada noted that the Chief Adjudicator reserves the ability to manage solicitor-client privileged and litigation privileged materials in his possession, and noted that paragraph 251 of the Reasons refers to both solicitor-client privilege and litigation privilege, and that in paragraph 254, I expressed the opinion that “privileged material should be excluded from the Non-Claim Records Collection.” Ms. Coughlan submitted that if the court were to accept an alteration to paragraph 5 of the Chief Adjudicator’s draft Order, the words “solicitor-client” and “litigation” should be deleted, leaving only the term “privilege”.

(b) Default Regime for Retention and Destruction of Documents (Chief Adjudicator’s Draft Order, Paragraph 6)

[13] The NCTR proposed an addition to paragraph 6 of the Chief Adjudicator’s draft Order to provide for greater clarity. Paragraph 6 of the Chief Adjudicator’s draft Order is set out below, with the NCTR’s proposed additions in italics:

6. Subject to the other terms of this Order, and to the Court’s further order after hearing Canada’s Proposal, the retention and destruction of documents shall be governed by the Library and Archives of Canada Act (the “Act”) and by Canada’s document retention policies. For greater clarity, nothing in this Order prevents any future devolution, sharing, copying or transfer of records held by Library and Archives Canada to the NCTR or any other archive, in the exercise of the National Archivist’s discretion under the Act.

[14] Ms. Birenbaum contended that although not expressed in the Reasons, the court intended that the RFD to be brought by Canada in June 2020 was meant to facilitate the transfer of a subset of the Indian Residential Schools Adjudication Secretariat to the NCTR “and to do so in the relatively near future”. Ms. Birenbaum submitted that given the direction in subparagraph 10(c) of the Reasons, [7] it would be helpful to confirm that the long-term management of the records may occur in accordance with the Act and the In Rem Order.

[15] The Chief Adjudicator rejected the contention that there is any need to elaborate on what had been set out in paragraph 6 of Chief Adjudicator’s draft Order. Mr. Trueman argued that the NCTR’s proposed additional language is inconsistent with the Reasons and that it would be premature to include it in the Order.

[16] In submitting that NCTR’s drafting is discordant with the Reasons, Mr. Trueman referred to paragraphs 176 to 187 and paragraph 192 of the Reasons. Mr. Trueman also pointed out that the NCTR’s proposed additional language would preempt the court’s continuing jurisdiction over this matter, bearing in mind the impending RFD to be brought by Canada. He submitted that in the absence of a full and informed context with an evidentiary foundation such as what will be found in Canada’s forthcoming proposal and RFD, there is no basis to include the NCTR’s proposed additional language in paragraph 6.

[17] Canada also disagreed with NCTR’s approach, which, Ms. Coughlan submitted, adds further language to paragraph 6 without reference to the Reasons.

[18] In her submission, by proposing the additional language, the NCTR seeks to preserve its future access to documents at Library and Archives Canada, and in doing so goes beyond the conclusions expressed in the Reasons.

[19] Ms. Coughlan further submitted that the NCTR’s position contradicts the Reasons, which provide that the NCTR is not permitted to receive copies of documents excluded from the contribution to the NCTR. Moreover, she asserted that the proposed inclusion sought by the NCTR is premature in that thus far, the court has only excluded certain documents from the body of documents that Canada may contribute to the NCTR; it has not decided how, when or on what terms the contribution is to occur, as this is to be adjudicated as part of Canada’s proposal.

[20] In reply, Ms. Birenbaum maintained her submission that the clarification or elaboration sought in relation to paragraph 6 of the Chief Adjudicator’s draft Order flows logically from the balance of the Order, which provides that the long-term retention and disposition of the Secretariat’s Records flow under the Library and Archives of Canada Act. Ms. Birenbaum submitted that this clarification is not premature, since it relates to the long-term management of the records by Library and Archives Canada and is unrelated to any Order that may be made in connection with the RFD to be brought by Canada as it is already understood that Canada will provide some of the Secretariat’s records to the NCTR (which records will not include various sets of sensitive records identified in the Reasons).

(c) Sealing a Portion of the Court File (Chief Adjudicator’s draft Order, proposed new recital and paragraph 9)

[21] Ms. Birenbaum noted that paragraph 8 of the Chief Adjudicator’s draft Order would provide for sealing a portion of the court file, consisting of Exhibits K and L of the Affidavit of Nicole Hansen, affirmed October 25, 2019.

[22] The exhibits in question contain drafts of the final versions of what were described at the hearing of the RFD and in the Reasons as “Static Reports”. [8] Due to concerns that the Static Reports could be construed as containing what was termed “IAP Personal Information” in the In Rem Order, the Chief Adjudicator’s counsel filed the Hansen affidavit with the court registry on a sealed basis pending further direction from the court, and provided it to other RFD hearing participants’ counsel on an undertaking to keep it confidential. In the Reasons, I directed that IAP Personal Information is to be excluded from the “Non-Claim Records Collection” to be assembled by Libraries and Archives Canada [9] and that if there is any risk that a record could reveal IAP Personal Information, copies of the record shall be excluded from the Non-Claim Records Collection. [10]

[23] In Ms. Birenbaum’s submission, directing that this portion of the court file be sealed would amount to a departure from procedure in that no RFD participant brought a motion for an Order that the court file be sealed, nor was notice given to the media. Ms. Birenbaum observed that the court did not make a sealing Order at the commencement of the hearing of the RFD. Therefore, while the NCTR recognized that effect must be given to my decision that the Static Reports should not be made public, it took the position that the Chief Adjudicator’s draft Order should be revised to reflect that no sealing motion was brought, and that no notice was given to the media.

[24] Consequently, Ms. Birenbaum submitted that there should be two additions to the Chief Adjudicator’s draft Order, namely a final recital and a new paragraph 9, both of which are set out in italics below:

AND ON THE COURT’S OWN MOTION to seal a portion of the Court file and dispense with the requirement to provide Notice to the Media,

9. Notice to the Media of the sealing order herein is dispensed with.

[25] On behalf of the Chief Adjudicator, Mr. Trueman pointed out that the body of the Hansen affidavit and all of the exhibits to it other than Exhibits K and L need not be, and are not proposed to be sealed. He described the NCTR’s proposed characterization of the sealing Order as having being made “on the Court’s own motion” as inaccurate, given that in paragraph 110 of its factum, Canada expressly asked the court to “maintain the seal over the Hansen affidavit”.

[26] Mr. Trueman submitted that the sealing Order proposed by the Chief Adjudicator reflects the substantive conclusion in paragraphs 220-221 of the Reasons that the Static Reports should not be archived because of the possibility of deducing IAP Claimants’ identities from them. Mr. Trueman took no position on the procedural issue of notification of the media.

[27] Canada also disagreed with the NCTR’s proposed insertion of language in the recitals to the Order and in paragraph 9 of the NCTR’s proposed draft Order to the effect that the court sealed the Hansen affidavit of its own motion and without notice to the media. Ms. Coughlan pointed out that sealing of the Hansen affidavit arose from the submissions and actions of the parties and was consistent with the provisions of the In Rem Order.

[28] In reply, Ms. Birenbaum submitted that if the Chief Adjudicator intended that the Hansen affidavit be sealed pending court approval, the draft Order should reflect that fact, along with the fact that no notice to the media was provided. She further submitted that the Order could recite “Whereas the Chief Adjudicator filed the Hansen affidavit with the Court in sealed form” or words to that effect.

D. Resolution of Issues and the Order as Settled

[29] Attached as Appendix 1 is the Chief Adjudicator’s draft Order, with italics reflecting my changes to it. Those changes reflect my determination of the issues raised by Ms. Birenbaum on behalf of the NCTR, and also my own editing of the Chief Adjudicator’s draft Order.

[30] I have left paragraph 5 of the Chief Adjudicator’s draft Order (privileged documents subject to destruction by the Chief Adjudicator) unchanged.

[31] Read as a whole, the Reasons reflect a respect for both solicitor-client and litigation privilege. [11] There is force to Mr. Trueman’s submission that it would be extraordinary to permit other parties to litigation to manage a litigant’s litigation privileged documents I do accept Ms. Birenbaum’s submission that paragraph 5 should not be amended to refer generically to “privileged” records and that the Order should be specific as to the types of privileged records that the Chief Adjudicator may destroy.

[32] I have also left paragraph 6 of the Chief Adjudicator’s draft Order (default regime for retention and destruction of documents) unchanged. I agree with Ms. Coughlan and Mr. Trueman that the NCTR’s proposed elaboration or clarification is unnecessary and may interfere with the court’s continuing jurisdiction over this matter, given the impending RFD to be brought by Canada.

[33] I also regard the inclusion of the proposed elaboration as premature in that so far, the court has only excluded certain documents from the body of documents that Canada may contribute to the NCTR. I have not determined other issues, including the time frame in which this contribution is to occur.

[34] I have not added a new paragraph to the Chief Adjudicator’s draft Order to indicate that notice to the media was dispensed with in relation to the Order sealing the portion of the court file that is comprised of Exhibits K and L of the Hansen affidavit. Similarly, I have not added a recital indicating that on its own motion, the court sealed a portion of the court file and dispensed with the requirement to provide notice to the media.

[35] I have not added the new paragraph because it is not true or correct. The sealing of Exhibits K and L of the Hansen Affidavit was mandated by the In Rem Order because those exhibits – Static Reports – contained IAP Personal Information.

[36] In filing the Hansen affidavit under seal and requiring undertakings from other counsel to protect the confidentiality of IAP Personal Information, the Chief Adjudicator’s counsel was complying with that Order, one which has borne the scrutiny of both the Court of Appeal and the Supreme Court of Canada.

[37] Moreover, contrary to what Ms. Birenbaum has contended, the court did not act on its own motion to seal the two exhibits. In paragraph 110 of its factum, Canada took the position that the Secretariat employees who prepared the Static Reports did so outside the scope of their duties, without judicial authorization, government support, IAP Oversight Committee consensus, or authority under the IRSSA. The “proper remedy”, Canada submitted, was to “destroy the [Static] Reports and maintain the seal over the Hansen affidavit”.

[38] However, I have added to the recitals to reflect the fact that the Chief Adjudicator’s counsel filed the Hansen affidavit under seal and provided to other counsel on their undertakings to keep it confidential. In that respect, after the reference to having read the “Request for Direction of the Chief Adjudicator, the Motion Records, factums, and affidavits filed” I have added the following:

[,] among them the Affidavit of Nicole Hansen, affirmed October 25, 2019, which was filed by counsel for the Chief Adjudicator under seal pending further direction from the Court, and provided to other counsel on an undertaking that it be kept confidential,

[39] It will be seen that I agree with Ms. Coughlan’s submissions that as a general matter, the language of the Order must track the Court’s reason to the extent possible, and that there was little room for dispute about the proper contents of the Order, having regard to paragraph 10 of the Reasons.

[40] My own edits to the Chief Adjudicator’s draft Order correct the reference to the location at which the RFD hearing took place and insert “IAP” before “Oversight Committee” as this is the name assigned to that committee by the IRSSA. [12]

[41] I direct that an Order may issue in the form set out in Appendix 2 and that the formality of counsel’s approval as to form and content be dispensed with.

[42] In the circumstances of the Covid-19 emergency, this Endorsement is deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed Order.

[43] The parties may submit a formal Order for signing and entry once the court re-opens for normal activities; however, this Endorsement is an effective and binding Order from the time of release.

[44] Finally, in view of the current Covid-19 emergency and the suspension of the court’s normal operations, should Canada consider it necessary to seek an extension of time stipulated by paragraph 2 of the Order for the hearing of Canada’s RFD to seek court approval of a proposal for the archiving of copies of Non-Claim Records with the NCTR (i.e., beyond June 30, 2020), Canada may request such extension of time by email to Court Counsel, with copies to counsel for other participants in the hearing of that RFD.

Perell, J.

Released: April 6, 2020

APPENDIX 1

Court File No. 00-CV-192059CP

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE MONDAY, THE 20th JUSTICE PERELL DAY OF JANUARY, 2020

B E T W E E N:

LARRY PHILIP FONTAINE, et al.

PLAINTIFFS

and

ATTORNEY GENERAL OF CANADA, et al.

DEFENDANTS

Proceedings under the Class Proceedings Act, 1992, S.O. 1992, c. 6

ORDER

THIS REQUEST FOR DIRECTIONS, brought by the Chief Adjudicator, was heard on December 12, 2019, at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N5,

ON READING the Request for Direction of the Chief Adjudicator, the Motion Records, factums, and affidavits filed, among them the Affidavit of Nicole Hansen, affirmed October 25, 2019, which was filed by counsel for the Chief Adjudicator under seal pending further direction from the Court, and provided to other counsel on an undertaking that it be kept confidential,

AND ON HEARING the submissions of counsel for the Chief Adjudicator, the Assembly of First Nations, the National Administration Committee, the National Centre for Truth and Reconciliation, and the Attorney General of Canada, and judgment having been reserved and released on this date,

THIS COURT ORDERS that:

The Chief Adjudicator’s Request for Direction

1. The Chief Adjudicator’s Request for Direction is dismissed.

Canada’s Proposal

2. Canada shall bring a Request for Direction to seek court approval of a proposal for the archiving of copies of Non-Claim Records with the National Centre for Truth and Reconciliation, not later than June 30, 2020, on notice to the parties to the present Request for Direction (“Canada’s Proposal”).

3. Canada’s Proposal shall adopt and apply the following general principles:

Principles

(a) Claim Records shall continue to be dealt with in accordance with the decisions in Fontaine v. Canada (Attorney General), 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

(b) Canada will employ the archivists at Library and Archives Canada to designate and assemble a “Non-Claim Records Collection,” copies of which are to be sent to the National Centre for Truth and Reconciliation for archiving.

Inclusions

(c) Existing Statistical Reports shall be included in the Non-Claim Records Collection.

(d) IAP Oversight Committee Records that are publicly published Minutes of the Oversight Committee shall be included in the Non-Claim Records Collection.

(e) Redacted copies of the Chief Adjudicator’s Reports to the Court shall be included in the Non-Claim Records Collection, with redactions to be proposed by Canada and approved by the Administrative Judges.

Exclusions

(f) Final Static Reports shall be excluded from the Non-Claim Records Collection.

(g) Any records of the IAP Oversight Committee and its ADR predecessor, the Chief Adjudicator’s Reference Group, that have not been made available to the public, including agendas and document packages, email exchanges and correspondence between committee members and expense vouchers for travel costs, shall be excluded from the Non-Claim Records Collection.

(h) The confidential and unpublished Minutes of in camera meetings of the IAP Oversight Committee shall be excluded from the Non-Claim Records Collection.

(i) Complaint Records, if they contain information that has not been disclosed or revealed to the public, shall be excluded from the Non-Claim Records Collection.

(j) Adjudicator Personal Records shall be excluded from the Non-Claim Records Collection.

(k) The following types of records shall be excluded from the Non-Claim Records Collection: (1) IAP Personal Information; (2) draft or duplicative records; (3) adjudicator personnel and performance records; and (4) information subject to solicitor-client privilege or litigation privilege.

(l) Where there is any risk that a record could reveal: (a) IAP Personal Information; (b) confidential information; or (c) information subject to solicitor-client or litigation privilege, the record shall be excluded from the Non-Claim Records Collection.

Management of Secretariat Records

4. Nothing in this Order affects the Chief Adjudicator’s management and control over documents subject to solicitor-client privilege or litigation privilege belonging to the Chief Adjudicator.

5. With the exception of records subject to solicitor-client privilege or litigation privilege, and records addressed by the Claims Records Orders, the Secretariat shall not destroy documents otherwise than in accordance with the Library and Archives of Canada Act and Canada’s document retention policies.

6. Subject to the other terms of this Order, and to the Court’s further Order after hearing Canada’s Proposal, the retention and destruction of documents shall be governed by the Library and Archives of Canada Act and by Canada’s document retention policies.

Final Static Reports

7. The Final Static Reports shall not be included in the IAP Final Report.

8. Exhibits K and L of the Affidavit of Nicole Hansen, affirmed October 25, 2019, which contain drafts of the Final Static Reports, shall remain under seal, but the body of the Affidavit and Exhibits A through J may be made available in the court file.

Costs

9. If the parties cannot agree about the matter of costs, the Assembly of First Nations and the National Centre for Truth and Reconciliation may make submissions in writing within twenty days following the release of this Court’s reasons, followed by the Attorney General of Canada’s submissions within a further twenty days.

The Honourable Justice Perell

APPENDIX 2

Court File No. 00-CV-192059CP

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE MONDAY, THE 20th JUSTICE PERELL DAY OF JANUARY, 2020

B E T W E E N:

LARRY PHILIP FONTAINE, et al.

PLAINTIFFS

and

ATTORNEY GENERAL OF CANADA, et al.

DEFENDANTS

Proceedings under the Class Proceedings Act, 1992, S.O. 1992, c. 6

ORDER

THIS REQUEST FOR DIRECTIONS, brought by the Chief Adjudicator, was heard on December 12, 2019, at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N5,

ON READING the Request for Direction of the Chief Adjudicator, the Motion Records, factums, and affidavits filed, among them the Affidavit of Nicole Hansen, affirmed October 25, 2019, which was filed by counsel for the Chief Adjudicator under seal pending further direction from the Court, and provided to other counsel on an undertaking that it be kept confidential,

AND ON HEARING the submissions of counsel for the Chief Adjudicator, the Assembly of First Nations, the National Administration Committee, the National Centre for Truth and Reconciliation, and the Attorney General of Canada, and judgment having been reserved and released on this date,

THIS COURT ORDERS that:

The Chief Adjudicator’s Request for Direction

10. The Chief Adjudicator’s Request for Direction is dismissed.

Canada’s Proposal

11. Canada shall bring a Request for Direction to seek court approval of a proposal for the archiving of copies of Non-Claim Records with the National Centre for Truth and Reconciliation, not later than June 30, 2020, on notice to the parties to the present Request for Direction (“Canada’s Proposal”).

12. Canada’s Proposal shall adopt and apply the following general principles:

Principles

(a) Claim Records shall continue to be dealt with in accordance with the decisions in Fontaine v. Canada (Attorney General), 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

(b) Canada will employ the archivists at Library and Archives Canada to designate and assemble a “Non-Claim Records Collection,” copies of which are to be sent to the National Centre for Truth and Reconciliation for archiving.

Inclusions

(c) Existing Statistical Reports shall be included in the Non-Claim Records Collection.

(d) IAP Oversight Committee Records that are publicly published Minutes of the Oversight Committee shall be included in the Non-Claim Records Collection.

(e) Redacted copies of the Chief Adjudicator’s Reports to the Court shall be included in the Non-Claim Records Collection, with redactions to be proposed by Canada and approved by the Administrative Judges.

Exclusions

(f) Final Static Reports shall be excluded from the Non-Claim Records Collection.

(g) Any records of the IAP Oversight Committee and its ADR predecessor, the Chief Adjudicator’s Reference Group, that have not been made available to the public, including agendas and document packages, email exchanges and correspondence between committee members and expense vouchers for travel costs, shall be excluded from the Non-Claim Records Collection.

(h) The confidential and unpublished Minutes of in camera meetings of the IAP Oversight Committee shall be excluded from the Non-Claim Records Collection.

(i) Complaint Records, if they contain information that has not been disclosed or revealed to the public, shall be excluded from the Non-Claim Records Collection.

(j) Adjudicator Personal Records shall be excluded from the Non-Claim Records Collection.

(k) The following types of records shall be excluded from the Non-Claim Records Collection: (1) IAP Personal Information; (2) draft or duplicative records; (3) adjudicator personnel and performance records; and (4) information subject to solicitor-client privilege or litigation privilege.

(l) Where there is any risk that a record could reveal: (a) IAP Personal Information; (b) confidential information; or (c) information subject to solicitor-client or litigation privilege, the record shall be excluded from the Non-Claim Records Collection.

Management of Secretariat Records

13. Nothing in this Order affects the Chief Adjudicator’s management and control over documents subject to solicitor-client privilege or litigation privilege belonging to the Chief Adjudicator.

14. With the exception of records subject to solicitor-client privilege or litigation privilege, and records addressed by the Claims Records Orders, the Secretariat shall not destroy documents otherwise than in accordance with the Library and Archives of Canada Act and Canada’s document retention policies.

15. Subject to the other terms of this Order, and to the Court’s further Order after hearing Canada’s Proposal, the retention and destruction of documents shall be governed by the Library and Archives of Canada Act and by Canada’s document retention policies.

Final Static Reports

16. The Final Static Reports shall not be included in the IAP Final Report.

17. Exhibits K and L of the Affidavit of Nicole Hansen, affirmed October 25, 2019, which contain drafts of the Final Static Reports, shall remain under seal, but the body of the Affidavit and Exhibits A through J may be made available in the court file.

Costs

18. If the parties cannot agree about the matter of costs, the Assembly of First Nations and the National Centre for Truth and Reconciliation may make submissions in writing within twenty days following the release of this Court’s reasons, followed by the Attorney General of Canada’s submissions within a further twenty days.

The Honourable Justice Perell

Fontaine et al. v. Canada (Attorney General) et al. Court File No. 00-CV-192059CP ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT TORONTO ORDER ARVAY FINLAY LLP 1512-808 Nelson Street Vancouver, BC V6Z 2H2 Catherine J. Boies Parker, Q.C. Tel: 778-557-2404 Fax: 888-575-3281 Email: cboiesparker@arvayfinlay.ca FARRIS LLP 25th Floor, 700 West Georgia Street Vancouver, BC V7Y 1B3 John Trueman (76757K) Tel: 604-661-2188 Fax: 604-661-9349 Email: jtrueman@farris.com Lawyers for the Chief Adjudicator

COURT FILE NO.: 00-CV-192059CP DATE: 2020/04/06 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: April 6, 2020

[1] The IAP is the means by which survivors pursue claims for compensation in relation to abuse suffered at what were known as “Indian Residential Schools”.

[2] Fontaine v. Canada (Attorney General), 2020 ONSC 366.

[3] Fontaine v. Canada (Attorney General), 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

[4] Central to the imposition of the In Rem Order was my finding (at para. 211 of Fontaine v. Canada (Attorney General), 2014 ONSC 4585) that “under the IRSSA, the IAP is a private and confidential process. Claimants are assured of confidentiality expressly by various provisions and statements in the IRSSA, by express assurances or promises of confidentiality in forms and documents prepared to implement the IAP, in website information and by oral assurances of confidentiality expressed by adjudicators at IAP hearings.”

[5] The NAC was created by section 4.10 of the IRSSA. It is comprised of one (1) counsel from each of the following groups: (a) Canada; (b) Church Organizations; (c) AFN; (d) The National Consortium; (e) Merchant Law Group; (f) Inuit Representatives; and (g) Independent Counsel. The terms, “Canada”, “Church Organizations”, “Independent Counsel” and “Inuit Representatives” are defined in section 1.01 of the IRSSA. The NAC has largely if not completely exhausted its mandate under section 4.11(12) of the IRSSA and submitted its final report to the Courts on May 8, 2019.

[6] The nine provincial and territorial superior courts that approved the IRSSA created the position of Court Counsel in their orders for the IRSSA’s implementation (referred to as the “Implementation Orders”. Brian Gover has been Court Counsel since 2013.

[7] Subparagraph 10(c) of the Reasons stated as follows: “With an exception for the Chief Adjudicator’s documents subject to solicitor and client privileged, the Secretariat shall not destroy any documents and the retention and destruction of documents shall be governed by the Library and Archives of Canada Act and by Canada’s document retention policies”

[8] The Static Reports are discussed at paragraphs 217-226 of the Reasons. At, In paragraph 10, I directed that Static Reports not be included in either the Chief Adjudicator’s Final Report (subparagraph 10(b)) or the documents comprising what were termed the “Non-Claim Records Collection” to be assembled by archivists at Libraries and Archives Canada, copies of which are to be sent to NCTR for archiving (clause 10(e)(iv)). I also noted that Canada’s position on the RFD was that the generation of Static Reports would contravene the In Rem Order.

[9] Reasons, clause 10(e)(xi).

[10] Reasons, clause 10(e)(xii).

[11] See, for example, clause 10(e)(xi), which provides that information subject to solicitor-client privilege or litigation privilege shall be excluded from the Non-Claim Records Collection to be assembled by Libraries and Archives Canada, and clause 10(e)(xii), which provides that if there is any risk that a record could reveal information subject to solicitor-client or litigation privilege, copies of the record shall be excluded from the Non-Claim Records Collection. Further, at paragraph 254, under the heading “How Should Privileged Material be Treated” and after a discussion that included reference to solicitor-client privilege, litigation privilege and common interest privilege, I stated, “Therefore, in my opinion, privileged material should be excluded from the Non-Claim Records Collection.”

[12] IRSSA, Schedule “D”, III r i. Appearing under the heading “IAP Oversight Committee”, this provision reads as follows: i The Chief Adjudicator Reference Group shall be reconstituted as the IAP Oversight Committee, which shall be composed of an independent chair and 8 other members, two reflecting the interests of each of the following constituencies: former students; plaintiffs’ counsel; church entities; government.