Court File and Parties
COURT FILE NO.: 00-CV-192059CP DATE: 2020/06/05 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 AIBAIOSAI-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, GAMBLE 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, THL INCORPORATED SYNOD OF THE DIOCESE OF HURON, THE METHODIST CHURCH OF CANADA, TIIE 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 ICORPORATED 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 WOMAN'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 SOEUR.S DE ST. FRANCOIS D'ASSISE, INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINTHYANCITHE, LES SOEURS DE JESUSMARIE, 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 MONTREAL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARITE 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 SOLA, ORDER OF THE OBLATLATES 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 ARCHIEPISCOPALE 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
Proceedings under the Class Proceedings Act, RSBC 1996, c. 50 and the Class Proceedings Act, 1992, SO 1992, c. 6
Joint Direction – Assignment of Supervising Judge Request for Direction brought by Edmund Metatawabin et al.
Background: The IRSSA and its Administration
[1] This is a joint direction of the Eastern and Western Administrative Judges (2020 BCSC 850).
[2] This Joint Direction is made in the administration of the Indian Residential Schools Settlement. The Direction assigns the task of hearing and determining the what is referred to below as the “Metatawabin RFD #2” to Brown J. of the British Columbia Supreme Court.
[3] By way of background, between December 15, 2006 and January 15, 2007, the superior courts in nine provinces and territories (the “Courts”) issued reasons approving a national settlement of various class actions related to Indian Residential Schools throughout Canada (the “Approval Orders” and the “Agreement” or “IRSSA”, respectively). In doing so, the courts approved what was and remains the largest and most complex class action settlement in Canadian history.
[4] The Courts subsequently issued orders on March 8, 2007, which incorporated the terms of the Settlement Agreement and otherwise addressed its implementation and administration (the “Implementation Orders”). The Court Administration Protocol appended to each of the Implementation Orders (and attached to this Joint Direction as Appendix “A”) provides for the Courts’ ongoing supervision of the Settlement Agreement’s implementation and administration. This has proven to be a significant responsibility.
[5] Pursuant to the Court Administration Protocol, two Administrative Judges have been designated by the nine superior courts that made the Approval Orders; an “Eastern Administrative Judge” and a “Western Administrative Judge”.
[6] The Court Administration Protocol calls upon the Administrative Judges to determine the jurisdiction in which a “Request for Direction” (“RFD”; “RFDs” in the plural) – the means by which matters requiring “court orders, directions or consideration during the course of the [IRSSA’s] administration” – should be addressed. In practical terms, this amounts to a power on the part of the Administrative Judges to assign the hearing of an RFD to one of the judges of the nine courts that approved the IRSSA – a “Supervising Judge”.
[7] The undersigned are the two Administrative Judges as well as the Supervising Judge for British Columbia and the Supervising Judge for Ontario. We have served in those roles since 2009 (in the case of the Western Administrative Judge/British Columbia Supervising Judge) and 2013 (in the case of the Eastern Administrative Judge/Ontario Supervising Judge). In the course of the IRSSA’s administration, the Supervising Judges have heard approximately 130 RFDs, with the vast majority of that total having been heard by these two courts.
[8] The administration of the IRSSA is now nearing completion. One of the last remaining parts of the apparatus created for the purposes of the IRSSA’s administration, [1] the Indian Residential Schools Adjudication Secretariat (“Secretariat”), is scheduled to cease operations on March 31, 2021. The Secretariat was established to support the Chief Adjudicator of the Independent Assessment Process (“IAP”). The IAP is one of the two major means of compensation created by the IRSSA, and was designed to compensate victims of abuse at Indian Residential Schools. [2] According to the Secretariat’s website, as of April 30, 2020, all but 7 of the 38,275 IAP claims received have been resolved. [3]
Metatawabin RFD #2
[9] On May 12, 2020, counsel for Edmund Metatawabin and IAP Claimants T-00185, S-20774 and S-16753 (the “Requestors”) brought a new RFD (the “Metatawabin RFD #2”; so referenced because it is the second RFD brought by or on behalf of Edmund Metatawabin) to the attention of Court Counsel, the lawyer appointed to assist the Administrative Judges and the Supervising Judges under the Implementation Orders. The Metatawabin RFD #2 is the latest of a number of RFDs brought on behalf of IAP claimants who attended St. Anne’s Indian Residential School (“St. Anne’s IRS”) in Fort Albany, Ontario. [4]
[10] The relief sought in the Metatawabin RFD #2 is far-reaching. In it, the Requestors seek orders: (1) compelling Canada to file revised POI reports/documents and the 2015 narrative/documents with the IRS Adjudication Secretariat, for each IAP claim by a former St. Anne’s IRS student that was heard in the absence of that evidence; (2) directing the Chief Adjudicator and the IRS Adjudication Secretariat to provide notice to each former St. Anne’s IRS student whose IAP claim was heard in the absence of that evidence; (3) directing Canada to pay up to $1,500 plus HST and disbursements to for each IAP claimant who receives that notice, for legal advice; (4) directing the Chief Adjudicator and IRS Adjudication Secretariat to delay destroying the IAP documents pertaining to St. Anne’s IRS IAP claims; (5) directing that this RFD and all future St. Anne’s RFD hearings to re-open to be convened by the ONSC in Timmins or Cochrane; (6) directing the Chief Adjudicator to publish an expedited RFD form and process for St. Anne’s IRS IAP claimants who seek to re-open their IAP claims on the basis of the evidence referred to in the first point above; (7) conferring cost immunity to any St. Anne’s IRS IAP claimant and/or claimant counsel, for bringing an RFD to re-open, unless that RFD is found to be frivolous and vexatious as per the Ontario Rules of Civil Procedure; (8) directing that that the public version of all St. Anne’s RFD court filings (RFD, evidence, facta) to date and in the future, to be filed with the NCTR for historical purposes, except if a document or part of a document is sealed due to IAP confidentiality; (9) sealing IAP confidential material contained in the RFD record; (10) conferring cost immunity to the Requestors; and (11) directing payment by Canada to the Requestors’ counsel of reasonable legal costs in relation to the RFD.
[11] On May 21, 2020, Court Counsel convened a case management teleconference in relation to the Metatawabin RFD #2. Preliminary issues were identified, [5] a timeline for exchange of materials in relation to those issues was established and the hearing was tentatively scheduled to proceed by videoconference on either June 22 or 26, 2020. During the case management teleconference, Court Counsel expressed the view that if they were to maintain that the Chief Adjudicator should be required to participate in the Metatawabin RFD #2, it would be necessary for the Requestors to bring a separate RFD to squarely raise that preliminary issue.
[12] In an email from Ms. Brunning, the Requestors’ counsel, dated May 29, 2020, she advised that they were no longer seeking to compel the Chief Adjudicator to participate in the Metatawabin RFD #2. Counsel further advised that due to Covid-19 conditions, they were withdrawing their request for the hearing to take place in Timmins or Cochrane, indicating that “[i]t is not safe for St. Anne’s [IRS] survivors to gather and appear at a public court hearing, nor to travel south, particularly to Toronto.” Instead, the Requestors’ counsel indicated that they would ask the Ontario Superior Court of Justice and Canada “to allow designated sites within certain communities to broadcast live the virtual RFD hearing.” Counsel elaborated that “[a]s counsel, [they were] still prepared to appear in Toronto depending upon the [Ontario Superior Court of Justice’s] practice at the time of the RFD hearing.”
[13] The Requestors’ counsel further indicated that they would be seeking an interim Order that Canada and the Chief Adjudicator cease the destruction of St. Anne’s IAP claims and the revised reports/documents. They maintained that the issue of a sealing order is premature until Canada has filed its responding evidence, and after the Requestors have filed any additional evidence for the merits of the RFD. They invited Canada to dispense with another of the previously-identified preliminary issues by agreeing to a costs immunity Order in their favour.
[14] Ms. Brunning’s May 29, 2020 email closed with a statement that the Requestors would file an amended RFD addressing this reframing of the preliminary issues on Monday, June 1, 2020, and expressed the hope that this would facilitate “a more streamlined and inclusive process.”
[15] In an email to the Metatawabin RFD #2 participants sent on May 30, 2020, Court Counsel referred to the email summarized in the preceding three paragraphs and continued:
In the attached email, Ms. Brunning has advised that the Requestors will not be pursuing items 2 and 3 on the list of preliminary issues below (participation of the Chief Adjudicator and place of hearing) but will be seeking an interim Order that Canada and the Chief Adjudicator should cease the destruction of St. Anne’s IAP claims and the revised reports/documents. I note that in asserting that the sealing order issue is premature, Ms. Brunning assumes that Canada will be filing responding evidence and that the Court will permit the Requestors to file additional evidence. Costs immunity remains in issue. Ms. Brunning has further advised that in light of these refinements to the Requestors’ position, she will serve an Amended RFD on June 1.
Please note that assuming it remains necessary, the hearing of the preliminary issues (the first stage of this RFD hearing) will proceed by videoconference on June 26, before Madam Justice Brown. I will provide more details as that date nears.
IAP Sunset RFD
[16] Because of the Requestors’ interest in its outcome (having regard to the forms of relief sought in the Metatawabin RFD #2), the Requestors’ counsel were invited to and both Ms. Brunning and Mr. Swinwood did participate in the hearing of the Chief Adjudicator’s IAP Sunset RFD on May 29, 2020. After hearing the submissions of all participants in relation to that RFD, the Western Administrative Judge directed the preparation of an Order that provides in relevant part as follows:
Completion of IAP claims
The adjudication of IAP claims, including any reviews or appeals by adjudicators or the Chief Adjudicator, shall be completed by December 1, 2020 (the “Adjudication Completion Deadline”), subject to any further order of this Court.
The Chief Adjudicator shall continue to report to the Administrative Judges, through Court Counsel, on a weekly basis concerning the status of unresolved IAP claims.
If it appears to the Chief Adjudicator, the parties to a claim, or the Court, that one or more IAP claims will not be resolved by the Adjudication Deadline, the Chief Adjudicator or a party to the claim(s) may seek, or the Court may provide on its own motion, further direction, either to expedite the resolution of the claim(s) or to provide a means whereby parties can access the IAP after the Adjudication Completion Deadline.
Request for Direction by Administrative Judges
[17] In response to Court Counsel’s May 30, 2020 email (referred to in paragraph 12, above), the Requestors’ counsel challenged the Administrative Judges’ ability assign the hearing of the Metatawabin RFD #2 to Brown J. and indicated that they were seeking instructions on whether to appeal. In an 8-page letter to Court Counsel dated June 1, 2020, Mr. Swinwood wrote in part as follows:
We will not agree to having any part of this RFD heard in British Columbia. Dr. Metatawabin abandoned the right to the [Ontario Superior Court of Justice] public hearing in Timmins or Cochrane, only due to COVID 19 limitations and risks. The [Court Administration Protocol] does not give British Columbia jurisdiction over this RFD. See below. We are seeking instructions on whether to appeal, but we request that Direction from the Administrative Judges, stated only in your email. See below.
[18] Mr. Swinwood’s letter also advised that contrary to the indication in Ms. Brunning’s May 29, 2020 email, the Requestors would not be in a position to file the Amended RFD until June 4 and that “that date is conditional upon receiving written confirmation from Canada as to whether Canada will file a Response and responding evidence.”
[19] Mr. Swinwood’s letter further stated that the “appeal and preliminary issues” could include the following:
A. Whether [Ontario Superior Court of Justice] has jurisdiction over this RFD;
B. Whether Canada must file a Response and responding evidence to existing RFD;
C. Whether Canada must disclose what transcripts and personal documents are in its possession about Claimant T-00185 from the discovery processes of the ONSC civil actions, and which documents do not fall under ADR and IAP documents controlled by the Chief Adjudicator under the In Rem Order; and
D. Right to Cross examinations on affidavits.
Ontario Supervising Judge Declines to Hear the Metatawabin RFD #2
[20] Justice Perell has determined that he should not to hear the Metatawabin RFD #2. The reasons underlying this decision are set out in the next four paragraphs.
[21] In Fontaine v. Canada (Attorney General), 2018 ONSC 4195, Perell J. ordered that costs in the amount of $25,000 be paid to Canada personally by Ms. Brunning, who had acted for the requestors in two RFDs, IAP Claimant C-14114 and Angela Shisheesh. In a decision released the same day, [6] Perell J. declined to recuse himself from deciding whether a costs award should be made in connection with the determination of RFDs. In making the costs award, Perell J. stated in part as follows:
[47] In my view, both rule 57.07(1) and the court’s inherent jurisdiction apply to the circumstances of the immediate case. Ms. Brunning’s conduct was a concerted effort to relitigate issues that had not been decided in her clients’ favour. She did not abide by the court’s orders with respect to what material should be filed in the proceedings. In Best v. Ranking [endnote omitted] costs were awarded against counsel personally for his role in launching a doomed action that was just a reconstituted version of an action that had previously been dismissed. Ms. Brunning’s conduct in the immediate case is similar and falls with the ambit of rule 57.07(1). Her conduct caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default.
[48] To be clear, I also find that Ms. Brunning’s unfounded allegations described above are deserving of sanction in the form of an award of costs to be paid by her personally as a matter of the court’s inherent jurisdiction to control its own process and to discipline its own officers.
[49] In the immediate case, it is not as if Ms. Brunning’s repeated allegations against Canada and against the courts were not taken seriously by the courts. My Reasons for Decision in the immediate case set out the history of how the court has responded to the various allegations made against Canada and against the courts in Ontario and in British Columbia. Notwithstanding the seriousness with which the court treated her allegations, Ms. Brunning appears to have ignored or not listened to the courts’ reasons.
[50] But also to be clear, I do not find that Ms. Brunning’s conduct was dishonest or malicious or that she had any actual intent to obstruct the orderly conduct of the judicial process. I find, however, that as well-intentioned as it may have been from the perspective of her duty to her client, her conduct falls into that extraordinary territory where she failed to fulfill her obligations to the administration of justice in the circumstances of the immediate case.
[22] Justice Perell had earlier directed Ms. Brunning to participate in the closing submissions of C-14114’s hearing as directed by the IAP Adjudicator on January 19, 2018, indicating that he viewed her conduct as “possibly contemptuous of this Court’s authority.” [7]
[23] In a decision cited as Brunning and Fontaine v. AGC, 2020 ONSC 1003, the Divisional Court concluded as follows:
[13] Without expressing on this appeal any opinion on whether or not the comments made about [Ms. Brunning] were justified, [Ms. Brunning] had no notice that the direction was going to be issued and no opportunity to make submissions in that regard. The comments are critical of [Ms. Brunning], including findings that she slandered the court, committed possible contempt and committed several instances of professional misconduct. [14] The parties to these appeals agree on the test for recusal. The Eastern Administrative Judge correctly noted that the grounds for an apprehension of bias must be substantial and the threshold of proof is a high one. There was no allegation of actual bias on the recusal motion. The motion for recusal did not seek to have the Eastern Administrative Judge recuse himself on all matters arising in the future relating to these parties. It was limited to seeking to have him recuse himself from hearing the very unusual remedy of costs sought personally against counsel. [15] Given the contents and substantive findings against [Ms. Brunning] contained in the January 15, 2018 direction (which was made without notice and, therefore, with no ability to respond), I am of the view that a reasonable, right minded, fully informed person would conclude that this is one of the rare instances where the author of that direction should not be the one to determine a claim for costs sought personally against [Ms. Brunning].
[24] While Justice Perell appreciates that Ms. Brunning has taken the position that he need not recuse himself from all matters in which she is involved, Justice Perell considers it in the best interests of the administration of justice that he do so in this case, given the Divisional Court’s findings and Ms. Brunning’s role in bringing forward the Requestors’ concerns.
Court Administration Protocol
[25] The relevant parts of the Court Administration Protocol provide as follows:
- Should a hearing be required, the Administrative Judges will make such direction and determine the jurisdiction in which the hearing should be held. In making this determination the Administrative Judges will be guided by the following principles:
a. Where the issue(s) involve relief for a particular class member or particular class, the hearing will be directed to the supervising court with jurisdiction over the class member or class pursuant to the terms of the Agreement and the Approval Orders.
b. Where the issue(s) affect more than one jurisdiction, but not all, the hearing will be directed to a supervising court in one of the affected jurisdictions.
c. Where the issue(s) affect all jurisdictions, the hearing may be directed to any court supervising the Agreement.
f. In applying these principles, the Administrative Judges may also be guided by an consideration that he or she deems to be appropriate in the circumstances.
Analysis and Joint Direction
[26] In view of Justice Perell’s decision to recuse himself from hearing it, the choice comes down to assigning the hearing of the Metatawabin #2 to either another judge of the Ontario Superior Court of Justice or another Supervising Judge.
[27] On the basis of our 18 years of cumulative experience as Administrative Judges and Supervising Judges for the purposes of the IRSSA, it is our opinion that the interests of judicial economy and experience are proper considerations under subparagraph 5(f) of the Court Administration Protocol, and that those interests would not be served by assigning the hearing of this RFD to someone who has not been previously involved in the IRSSA’s administration. No efficiency can be achieved by assigning a judge who is unfamiliar with the IRSSA and the jurisprudence under it. Instead, the interests of judicial economy point toward assigning Brown J. to hear this RFD.
[28] The advisability of achieving judicial economy and efficiency is especially prominent in the present circumstances. Because of it has been brought in the final stage of the IRSSA’s administration – a time when the machinery of the IRSSA is being dismantled and plans are underway for the closure of the IRS Adjudication Secretariat – there is a clear need for the Metatawabin RFD #2 to be heard and determined on a urgent basis. It would not be an overstatement to say that there is urgency in getting on with the hearing of the merits of this RFD before the IAP is dismantled.
[29] We understand that the Requestors would prefer that this RFD be heard by a judge of the Ontario Superior Court of Justice. We point out, however, that as recognized in Ms. Brunning’s May 29, 2020 email, the current reality is that due to the Covid-19 pandemic, virtual proceedings and not traditional in-person hearings have become the norm. The Requestors have indicated that it is not safe for St. Anne’s survivors to gather and appear at a public court hearing, nor to travel south, particularly to Toronto. In the immediate case, we direct that the hearing be a virtual proceeding that would be notionally held in Vancouver but with remote attendances from any where in Canada including Cochrane. This mode of proceeding will address the travel and safety concerns of the Requestors and others.
Conclusion
[30] As Administrative Judges, we jointly direct that the Metatawabin RFD #2 be heard by Brown J., by means of videoconference, with provision made for public access to the virtual hearing.
[31] In the circumstances of the Covid-19 emergency, this Joint Direction 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.
[32] Finally, it should be noted that Justice Perell has participated in this Joint Direction solely in his role as Eastern Administrative Judge.
_____________________ Perell, J.
Released : June 5, 2020
COURT ADMINISTRATION PROTOCOL
In order to ensure the efficient and expeditious administration of the Agreement, the courts have determined that a streamlined process for addressing all matters that require court orders, directions or consideration during the course of the administration is desirable. Accordingly, the procedure set out below will be followed in respect of all such matters.
The courts will designate two Administrative Judges from among the 9 (nine) judges who heard the motions for approval of the Agreement, or their successors as supervising judges. There will be one Eastern Administrative Judge and one Western Administrative Judge.
All matters that require court orders, directions or consideration, will be brought to the attention of the Administrative Judges at first instance by the filing of a Request For Direction. The Request will identify the party, counsel or other entity with standing in respect of the Agreement who is bringing the matter forward, the matter(s) in issue, the relief requested, whether it is on consent, or if opposed, the various positions of those in favour and those opposed. It is expected that all parties, counsel and entities with standing will cooperate to the extent that a single Request that fairly and accurately sets out the issue(s) and their positions in brief form is filed. The Judges do not expect to receive initial Requests that exceed 3 pages in length.
Upon receipt of a Request, the Administrative Judges will determine whether a case management conference is required or whether the matter should be directed to a hearing.
In the event that a case management conference is required, the conference will be conducted by one or both of the Administrative Judges.
Should a hearing be required, the Administrative Judges will make such direction and determine the jurisdiction in which the hearing should be held. In making this determination the Administrative Judges will be guided by the following principles:
(a) Where the issue(s) involve relief for a particular class member or particular class, the hearing will be directed to the supervising court with jurisdiction over the class member or class pursuant to the terms of the Agreement and the Approval Orders.
(b) Where the issue(s) affect more than one jurisdiction, but not all, the hearing will be directed to a supervising court in one of the affected jurisdictions.
(c) Where the issue(s) will affect all jurisdictions, the hearing may be directed to any court supervising the Agreement.
(d) If the issue(s) raised are such that the relief requested may result in an order that would constitute an amendment of the Agreement or the Approval Orders, the Administrative Judges will direct that a full record be delivered to each of the supervising courts and direct that the matter be heard by at least one of the supervising courts. Upon communication with all the supervising courts, the Administrative Judges will advise the parties further how many additional hearings will be held, if any. A supervising court that has received a copy of the full record may choose to adopt the reasons of any other supervising court hearing the matter without holding a formal hearing of its own, but no order amending the Agreement or the Approval Orders shall be effective unless it is approved by all 9 (nine) supervising courts.
(e) On purely procedural matters, the Administrative Judges may direct that any hearing shall be in writing only. On substantive matters, the court to which the hearing is directed, shall in its discretion, determine the manner in which the matter will be heard, whether in writing or by appearance, or both.
(f) In applying these principles, the Administrative Judges may also be guided by any other consideration that he or she deems to be appropriate in the circumstances.
Any task designated to be carried out by the Administrative Judges, may be carried out by either one of them acting alone or both acting together.
Nothing in this protocol shall be construed as derogating from the authority of the Administrative Judge in his or her capacity as a supervising judge under this Agreement, and for greater clarity, neither Administrative Judge shall be precluded from referring any matter to be determined to him or herself or to the other Administrative Judge.
During the course of the administration of the Agreement, the judges of the supervising courts will continue to communicate with one another in the same manner and on the same basis that was the case with respect to the motions for approval of the Agreement.
Footnotes
[1] The Monitor created under the Implementation Orders has substantially completed its role. The Independent Special Advisor appointed pursuant to the Administrative Judges’ Joint Direction of November 25, 2014, has similarly completed his mandate. By Order dated November 27, 2019, the “Transition Coordinator” appointed pursuant to the decision in Fontaine v. Canada (Attorney General), 2012 BCSC 839 was discharged of further responsibility. The National Administration Committee delivered its final report to the Administrative Judges on May 6, 2019 On May 29, 2020, the Western Administrative Judge/British Columbia Supervising Judge addressed the National Administration Committee’s Dissolution RFD (filed with the BCSC’s registry on November 7, 2019) and the Chief Adjudicator’s IAP Sunset RFD (filed with the BCSC’s registry on March 11, 2020).
[2] The other means of compensation is the Common Experience Payment, which as its name suggests compensates former Indian Residential School students for the experience of having been compelled to attend an Indian Residential School, with the attendant loss of culture, language and familial connection.
[3] http://www.iap-pei.ca/stats-eng.php
[4] These include Fontaine v. Canada (Attorney General), 2014 ONSC 283 (“St. Anne’s RFD #1”); Fontaine v. Canada (Attorney General), 2014 ONSC 4024 (“RFD re: R. v. Wesley – Expert Reports and Transcripts”); Fontaine v Canada (Attorney General), 2015 ONSC 3185 (“Refusals RFD”); Fontaine v Canada (Attorney General), 2015 ONSC 4061 (“St. Anne’s RFD #2”); Fontaine v Canada (Attorney General), 2016 ONSC 4328 (“RFD H-15019”); Fontaine v Canada (Attorney General), 2016 ONSC 7913; Fontaine v Canada (Attorney General), 2017 ONSC 1149; Fontaine v Canada (Attorney General), 2017 ONSC 2487 (“Metatawabin RFD # and RFD H-15019”); appeal dismissed: Fontaine v. Canada (Attorney General), 2018 ONCA 421; Fontaine v Canada (Attorney General), 2017 ONSC 4275; Fontaine v. Canada (Attorney General), 2017 ONSC 5174 (“C-14114 and Shisheesh RFDs”); Fontaine v. Canada (Attorney General), 2018 ONSC 103; and Fontaine v. Canada (Attorney General), 2018 ONSC 3957 (“Shisheesh RFD”); and Fontaine v. Canada (Attorney General), 2018 ONSC 6893.
[5] The preliminary issues were: (1) Sealing order re: IAP confidential material contained in the Metatawabin RFD record (RFD, para. 1(i); not expected to be in dispute); (2) Participation of the Chief Adjudicator (to be the subject of a further RFD to be filed by the Requestors); (3) Place of hearing (RFD, para. 1(e)); and (4) Costs immunity (RFD, para. 1(g) and para. 1(j)).
[6] Fontaine v. Canada (Attorney General), 2018 ONSC 4182.
[7] Fontaine v. Canada (Attorney General), 2018 ONSC 357.
