COURT FILE NO.: 00-CV-192059CP

DATE:2021/04/15

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
• Stuart Wuttke and Jeremy Kolodziej for the Assembly of First Nations

HEARING: February 5, 2021

PERELL, J.

REASONS FOR DECISION – CANADA’S PROPOSAL TO ARCHIVE COPIES OF CERTAIN NON-CLAIM RECORDS AT THE NATIONAL CENTRE FOR TRUTH AND RECONCILIATION

A. Introduction and Overview.. 4

B. Procedural and Evidentiary Background. 6

1. The Claim Records and the Non-Claim Records of the IAP. 6

2. Completion of the IAP and the Shuttering of the Secretariat 15

3. The National Centre for Truth and Reconciliation. 17

4. The IRRSA and IAP Records. 18

C. Canada’s Proposal 19

D. Responses to Canada’s Proposal 21

1. The NCTR’s Position. 21

2. The AFN’s Position. 22

3. Canada’s Responses. 23

E. Discussion and Analysis. 24

F. Conclusion. 26

G. Order 27

A. Introduction and Overview

[1] This decision is the second in a set of decisions on Requests for Direction (“RFD”) about document retention of documents used in the administration of the Indian Residential Schools Settlement Agreement (“IRSSA” or “Settlement Agreement”). The first RFD was brought by the Chief Adjudicator. In his RFD, the Chief Adjudicator made a proposal for disposing of the “Non-Claim Records” of the Independent Assessment Process (the “IAP”), which is an aspect of the IRSSA.

[2] The IAP is the process by which survivors pursue claims for compensation in relation to abuse suffered at the Indian Residential Schools. The Non-Claim Records were either generated or collected by the Indian Residential School Adjudication Secretariat (“IRSAS” or “Secretariat”), the autonomous administrative apparatus created by Canada to support the Chief Adjudicator and the IAP.

[3] The Chief Adjudicator’s proposal was to archive most of the “Non-Claim Records” with the National Centre for Truth and Reconciliation (“NCTR”). The NCTR has a mandate to archive and store records relating to Indian Residential Schools. For example, among the NCTR’s archival holdings are all of the records collected by the Truth and Reconciliation Commission (“TRC”), which was created by the IRSSA. The NCTR also receives records directly from survivors.

[4] In an RFD decision cited as Fontaine v. Canada (Attorney General), [“Non-Claim Records #1],[^1] I concluded that this court has the jurisdiction to make the order sought by the Chief Adjudicator’s[^2] and that the NCTR is an appropriate archive for copies of the Non-Claim Records.[^3] However, I dismissed the Chief Adjudicator’s RFD because in my view it was inappropriate for the Chief Adjudicator to make decisions about the retention, archiving, and destruction of records that, but for the intervention of the IRSSA and the court’s overriding jurisdiction, would have been administered by Canada in the way it administers the records and documents of government departments.[^4]

[5] Instead of granting the Chief Adjudicator’s RFD, which had been opposed by Canada, I directed Canada to create a proposal to archive copies of certain Non-Claim Records with the NCTR in accordance with general principles set out in that decision.[^5] In Fontaine v. Canada (Attorney General) [“Non-Claim Records #1], I directed that some items be included in[^6] and others excluded from[^7] Canada’s archiving proposal in relation to the Non-Claim Records (“Canada’s Proposal”).

[6] The NCTR appealed the decision, but in the meantime, in response to my direction, the second RFD followed. This RFD was brought by Canada. As is the practice in “matters […] requir[ing] court orders, directions or consideration during the course of the [IRSSA’s] administration,” Canada’s Proposal was brought in the form of an RFD.[^8]

[7] Participants in Canada’s RFD were given until December 18, 2020 to express their positions on Canada’s proposal. Only the NCTR and the Assembly for First Nations (“AFN”) – which plays a political role in advocating on behalf of First Nations and is a signatory of the IRSSA – took positions in relation to Canada’s RFD and participated in the hearing in relation to it.

[8] On the hearing of Canada’s RFD about the Non-Claim Records, the submissions were focused on a draft Order prepared by Canada. An annex to the draft Order set out the details of Canada’s proposal. Canada incorporated aspects of the AFN’s and NCTR’s positions in the final draft of Canada’s Proposal. Essentially, and as I will discuss below, in various and differing ways, the NCTR and AFN endorsed some aspects of Canada’s RFD but opposed others.

[9] In the meantime, the NCTR’s appeal from the decision in Fontaine v. Canada (Attorney General), [“Non-Claim Records #1],was heard on October 29, 2020 and in a decision released on April 1, 2021, the appeal was allowed in part.[^9] The issue as to whether the proposed Static Reports should be generated and archived with the NCTR was returned to this court for rehearing, but the balance of the appeal was dismissed.[^10]

[10] I have now considered Canada’s proposal for the disposition of the Non-Claims Records, and for the reasons that follow:

a. I allow Canada’s RFD.

b. I direct that the order attached to these reasons as Appendix “A” be issued.

c. I dispense with the requirement that the parties’ counsel approve that order before its issuance.

d. I make no order as to costs.

B. Procedural and Evidentiary Background

1. The Claim Records and the Non-Claim Records of the IAP

[11] The procedural and evidentiary background for Canada’s RFD is largely set out in paragraphs 12 through 118 of Fontaine v. Canada (Attorney General) [“Non-Claim Records #1”] and need not be repeated here. For present purposes, I shall only highlight several aspects of that background to provide the context for this RFD decision.

[12] The signatories to the IRSSA were: (a) plaintiffs represented by three groups of plaintiffs’ counsel (the “National Consortium” and the Merchant Law Group, both of which had brought class actions and “Independent Counsel”, who had brought individual actions for survivors; (b) the AFN; (c) Inuit Representatives; and the defendants, (d) the General Synod of the Anglican Church of Canada; (e) the Presbyterian Church of Canada; (f) the United Church of Canada; (g) approximately 50 Roman Catholic Church entities; and (h) Canada.

[13] On dates in December, 2006 and January, 2007, nine courts (collectively, the “Courts”)[^11] approved the IRSSA and issued substantially identical Approval Orders. In March 2007, on consent of the parties, those courts issued identical Implementation Orders.

[14] The Courts’ judgments and Approval Orders provide that the Courts shall supervise the implementation of the IRSSA and that the Courts may issue such orders as are necessary to implement and enforce the provisions of the agreement and the judgment. The Court Administration Protocol appended to the Implementation Orders provides that the procedure for obtaining such orders is an RFD.

[15] Fourteen years after its approval by the Courts, the IRSSA remains Canada’s largest (by dollar value) and most complicated class action settlement. More importantly, the IRSSA has played an enormously significant part in our country’s attempt to achieve reconciliation with its Indigenous Peoples, and to recognize the harms done to them.

[16] Because of the role assigned to them under the IRSSA, the Approval Orders, the Implementation Orders, class proceedings legislation and through inherent jurisdiction, the judges of the Courts who are tasked with supervising the IRSSA’s implementation and ongoing administration are referred to as the “Supervising Judges”. I am one such judge.

[17] Together with my colleague Justice Brenda Brown of the British Columbia Supreme Court, I am also one two “Administrative Judges” who are given additional responsibility under the Court Administration Protocol appended to the Implementation Orders.

[18] The Implementation Orders also appointed a lawyer (referred to as “Court Counsel”) to act as legal counsel to and for the courts to assist the Courts in their supervision over the Settlement Agreement’s implementation and administration.

[19] In administering the IRSSA, the courts have been asked to address the matter of the documents of the IAP. Generally speaking, these documents can be described as “Claim Records” and “Non-Claim Records”. As noted above, the Non-Claim Records are the subset of IAP documents that is the subject of the immediate RFD.

[20] In Canada (Attorney General), v. Fontaine [Claim Records],[^12] the Supreme Court of Canada considered the treatment of the Claim Records.

[21] The overall tenor of the Fontaine v. Canada (Attorney General) [Claim Records] decisions was that after a retention period of fifteen years, Claim Records would be destroyed, but Claimants would have the overriding right to have their personal records archived at the NCTR instead of being destroyed. A notice program was to be developed to let survivors know about their rights to archive their stories with the NCTR.

[22] At another RFD hearing, I approved the notice program. See Fontaine v. Canada (Attorney General), [Enhanced Notice Program].[^13]

[23] As noted above, the 2014 RFD was concerned with a subset of IAP documents and records. For the purpose of the Canada (Attorney General) v. Fontaine [Claim Records] decisions, “IAP Claim,” “Personal Information” and “IAP Personal Information,” were defined as follows:

“IAP Claim” means a claim under the IAP, including the Negotiated Settlement Process.

“Personal Information” means information that identifies an individual or that, alone or in combination with other available information, could permit or lead to the identification of an individual.

“IAP Personal Information” means any Personal Information about a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim that is obtained through the administration of an IAP Claim, and includes the fact that an identifiable individual is a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim.

[24] At first instance in the 2014 Canada (Attorney General), v. Fontaine [Claim Records] RFD, I approved the Chief Adjudicator’s proposal that Claim Records be destroyed unless the Claimant requested that the records be archived with the NTRC. With some variation, my decision was upheld by the Court of Appeal[^14] and the Supreme Court of Canada.[^15] For present purposes, paragraphs 1 and 4 of the 2014 Order are particularly pertinent; they stated:

IAP Documents and IAP Personal Information

1. THIS COURT ORDERS AND DECLARES that IAP Documents and IAP Personal Information are private and confidential and may not be used or disclosed by anyone for any purpose other than resolving IAP Claims and paying compensation, for the limited purposes of prosecuting criminal or child protection or lawyer regulation proceedings, or as permitted by this Order and any other Orders made by the Supervising Courts in the course of implementation of the Settlement Agreement. IAP Documents shall not be retained for archiving or made available for research or statistical purposes, except as permitted by Paragraphs 2(c) or 4 of this Order.

2. AND THIS COURT ORDERS that the Chief Adjudicator shall retain IAP Retained Documents held by the Chief Adjudicator and the Secretariat for a 15-year Retention Period under the following conditions:

(a) Before the end of the Retention Period. a Claimant may consent to any of the IAP Redacted Documents in respect of his or her claim being archived at the NCTR;

(b) A Claimant's consent to archiving under Paragraph 4 (a) must be express, informed, voluntary and written:

(c) On receiving a Claimant's consent under Paragraph 4 (a), the Chief Adjudicator shall identify the relevant IAP Retained Documents, determine if Personal Information about all alleged perpetrators or other affected individuals in respect of an IAP Claim can be reasonably redacted from them and, if so, redact the IAP Retained Documents and transfer the resulting IAP Redacted Documents to the NCTR;

[25] In my Reasons for Decision in Fontaine v. Canada (Attorney General) [Claim Records] decision, which were ultimately affirmed with some variations by the Ontario Court of Appeal and the Supreme Court of Canada, I recognized the historical value of Non-Claim Records, and I took care that my decision about the destruction of Claim Records not be overbroad and capture these other historically important records. I stated at paragraphs 376 and 377 of my decision:

376. The court’s Destruction Order should not be overbroad, and the Destruction Order should not apply to NAC, OC, Chief Adjudicator, AANDC, SAO and Department of Justice documents simply because they are related to the IAP.

377. The IAP is itself now a part of the history of Canada, and the court’s Destruction Order needs to focus on the personal information of the Claimants and not be overbroad.

[26] The disposition of Claim Records having been comprehensively addressed, Non-Claim Records remained to be dealt with.

[27] In a letter to Court Counsel dated June 25, 2019, the IAP’s Chief Adjudicator advised that the Indian Residential Schools Adjudication Secretariat (the “Secretariat”)[^16] was then in the process of “developing a disposition plan for the non-claim-specific records not covered by the existing Records Disposition Court Order”. The Chief Adjudicator sought guidance on the issue of archiving the Chief Adjudicator’s Quarterly Reports to the Courts, as well as other documents relating to the establishment, governance and operations of the IAP.

[28] The Administrative Judges considered the Chief Adjudicators correspondence and Court Counsel advised the Chief Adjudicator of the Administrative Judges’ direction that an RFD be brought to address the matter of the Non-Claim Records and related issues. An RFD would provide an opportunity for all parties to the IRSSA to have input in the decision. The resulting RFD led to the decision in Fontaine v. Canada (Attorney General) [“Non-Claim Records #1].

[29] The major elements of the Chief Adjudicator’s proposal were as follows:

a. The proposal with respect to “Non-Claim Records” was based on recommendations of Edwin Tompkins, a professional archivist, who was retained by the Chief Adjudicator to review and assess the records. In his recommendations, Mr. Tompkins stated that records documenting the process by which IRS survivors received redress will be of the highest possible interest to academic researchers, indigenous peoples, and the general public.

b. “Claim Records” were to continue to be dealt with in accordance with the Fontaine v. Canada (Attorney General) [Claim Records] decisions.

c. “Claim Records” were what was described as “IAP Documents” in the Fontaine v. Canada (Attorney General) [Claim Records] decisions. In the Orders, they were defined as follows:

IAP Documents means records, in any medium, specifically generated for use in an IAP Claim and containing IAP Personal Information, and includes any copies of records, in any medium, specifically collected for use in an IAP Claim. For greater clarity, IAP Documents do not include pre-existing records generated or compiled for a purpose other than to be used in the IAP, particularly where those records remain lawfully held by their respective custodians. Without limiting the generality of the foregoing, IAP documents include:

(a) IAP application documents, including IAP Application Forms (as set out in Appendix XIV of Schedule D [of the IRSSA] as well as variations thereof) and any related correspondence or documentation (particularly as related to the matters set out in Appendices I and Il of Schedule D);

(b) IAP Claimants' mandatory documents, within the meaning of Appendix VII of Schedule D, and any related correspondence or documentation;

(c) Canada's mandatory documents within the meaning of Appendix VIII of Schedule D, and any related correspondence or documentation;

(d) Third party documents, including statements by alleged perpetrators or witnesses (as contemplated in Appendices III and IV of Schedule D) and correspondence or documentation relating to the participation of an alleged perpetrator, witness, or Church entity in an IAP Claim;

(e) IAP hearing records, including correspondence or documentation relating to any aspect of the hearing of an IAP Claim, notices of hearing, records of attendance at hearing, confidentiality agreements, audio recordings of hearings, written transcripts of hearings, and correspondence or documentation relating to the scheduling of an IAP hearing;

(f) IAP expert reports and assessments within the meaning of Appendix VI of Schedule l) and any related correspondence or documentation:

(g) IAP Claimants’ legal representation documentation including retainer agreements, notices of withdrawal, legal fees decisions and any related correspondence or documentation:

(h) Other exchanged and used by participants during the conduct an IAP Claim and without limiting the generality of' the foregoing, including future care plans (as to in Appendix VII of' Schedule D), completed release forms under Schedule P to the Settlement Agreement, records relating to previous Indian Residential Schools litigation, formal research requests from adjudicators, and any responses thereto;

(i) Records of adjudicators' decisions relating to IAP Claims, including preliminary decisions by adjudicators on jurisdictional matters, adjudicators' compensation decisions in relation to an IAP Claim as referred to in Appendix XII of Schedule D, and review decisions pursuant to Part III (1) of Schedule D; and,

(j) Other administrative documents relating to any IAP Claim, including correspondence and notes produced by any participant in an IAP Claim.

d. “Government Administrative Records” were to be transferred to Canada.

i. “Government Administrative Records” are records pertaining to activities carried out in accordance with Canada’s financial management policies including human resource management, financial management, information and technology, and procurement processes.

ii. The Chief Adjudicator proposes that Government Administrative Records that arise from the Secretariat’s exercise of delegated financial and human resource actives should be managed in accordance with Canada’s normal practices.

e. “Non-Claim Records” were records pertaining to the operation, management and oversight of the IAP and the former Alternative Dispute Resolution (“ADR”) process that have been assessed as having archival significance.

f. The major categories of the Non-Claim Records Collection were as follows:

i. Records management tools for Non-Claim Records (e.g. archival appraisal and annexes, Secretariat file plan, archival collection inventory, disposition schedule);

ii. Communications products and communications policy, planning and procedure records (e.g., approved communications strategies);

iii. Snapshots of the Secretariat and Notice Program internet sites at the time of Secretariat closure;

iv. Records respecting the Secretariat’s participation in TRC events;

v. Records respecting health and healing services (e.g., the RHSW program);

vi. Chief Adjudicator’s Guidance Papers, Directives, Practice Directions, Updates to Adjudicators, Updates to Counsel, and Administrative Updates;

vii. Adjudicator training and meeting records;

viii. Materials presented to the National Administration Committee (NAC) by the Chief Adjudicator or Secretariat;

ix. Secretariat management committees’ meeting records;

x. Records respecting Secretariat liaison with IAP stakeholders;

xi. Plans and reports for IAP Completion Strategy, Strategic Partnership Strategy, Administration Transfer Post Secretariat and National Outreach Strategy;

xii. Overall Secretariat management policy research and analysis;

xiii. Adjudication Management case management tools, manuals, forms and procedures;

xiv. Outreach and Group IAP policies, plans and procedures;

xv. IAP Final Report; and

xvi. IAP Statistical Reports.

g. In addition to the existing Statistical Reports, a set of Final Outcome Statistical Reports (referred to as “Static Reports”) would be extracted from the database used by the Secretariat for inclusion the IAP Final Report. These Final Outcome Statistical Reports would cross-tabulate specific variables in the SADRE database and be accompanied by an interpretative glossary of terms. For example, the Static Reports would aggregate information about IAP Claimant profiles based on variables such as age, sex, and acts of abuse by province.

h. With some exceptions, the “Non-Claim Records” were to be donated to the NCTR.

i. Four types of records were to be excluded from the Non-Claim Records Collection; namely: (1) IAP Personal Information; (2) draft or duplicative records, (3) adjudicator personnel and performance review records; and (4) information subject to solicitor-client privilege or litigation privilege.

j. Non-Claim Records that were non-archival, privileged, or relating to individual personnel histories were not to be archived and would be destroyed.

k. “Statistical Reports” should be archived at the NCTR.

i. “Statistical Reports” were aggregations of information derived from “IAP Personal Information,” as defined in Fontaine v. Canada (Attorney General) [Claim Records], but which do not disclose IAP Personal Information or identify Claimants.

l. The Statistical Records should include the “Static Reports” that will be included in the Chief Adjudicator’s Final Report to the Courts.

m. With the consent of the affected individual and the Court Monitor, “Complaint Records” should be archived with the NCTR.

i. “Complaint Reports” are correspondence and notes about complaints from IAP Claimants about persons representing them in IAP hearings.

ii. After a number of serious episodes of misconduct, in 2014, the Supervising Courts appointed an Independent Special Advisor to handle complaint matters. The Complaint Records include information about the Chief Adjudicator’s investigations before the appointment of the Independent Special Advisor.[^17] The Complaint Records include communications with the Independent Special Advisor.

n. The Chief Adjudicator sought direction with respect to the disposition of “Oversight Committee Records”.

i. “Oversight Committee Records” were: (a) the publicly published Minutes of the IAP Oversight Committee; (b) the not publicly available records of the Oversight Committee and its ADR predecessor the “Chief Adjudicator’s Reference Group,” including agendas and document packages, email exchanges and correspondence between committee members and expense vouchers for travel costs; and (c) the confidential and unpublished Minutes of In Camera Meetings of the IAP Oversight Committee.

o. The Chief Adjudicator sought direction with respect to the disposition of the “Reports to the Court”

i. “Reports to the Court” were the Chief Adjudicator’s reports submitted through the Monitor to the IRSSA courts not less than quarterly on all aspects of the implementation and operation of the IAP.

p. The Chief Adjudicator would employ commercially reasonable efforts to ensure that the Collection of Non-Claim Records does not include “IAP Personal Information” (as defined in the Fontaine v. Canada (Attorney General) [Claim Records] decisions). The Chief Adjudication would undertake a risk-based review of the Non-Claim Records before transfer to the NCTR. Where there was a risk that a record could reveal IAP Personal Information, it would not be transferred.

[30] In determining that the RFD concerning the disposition of the Non-Claim Records was more properly brought by Canada than by the Chief Adjudicator, I reasoned in Fontaine v. Canada (Attorney General) [“Non-Claim Records #1] as follows:

[186] It follows from the above discussion that the court has the jurisdiction to approve the Chief Adjudicator’s proposal for the disposition of the Non-Claim Records. However, as I shall now explain, while I am of the view that there should be an order made to govern what is to happen to the Non-Claim Records, the proposal for such an Order should, in the first instance, come from Canada and not from the Chief Adjudicator.

[187] In my opinion, once the prerogatives of the IRSSA are addressed, the normal regime for the disposition of government documents should not be disturbed. This approach was more or less acknowledged by the Chief Adjudicator with his proposed treatment of “Government Administrative Records.” Canada has the infrastructure and the expertise and experience with dealing with matters of document retention, archiving, and destruction and it should be given an opportunity to come up with a proposal.

[188] How then should the Non-Claim Records be dealt with? The Claims Records are closer to the claimants because the Claims Records are personal documents of their personal histories, and these documents must be disposed of in accordance with the Fontaine v. Canada (Attorney General) [Claim Records] decisions. In terms of their proximity to the claimants, the same cannot be said for the Non-Claims Records, which, generally speaking, are institutional documents that would normally be governed by how government department documents are treated for destruction, retention and archiving purposes. Once again, this suggests that Canada should have the first opportunity to fashion a plan for the Non-Claim Records.

[189] While the Non-Claim Records and the Claim Records are both subsets of IAP Documents under the Secretariat’s control, for the purposes of the of the IRSSA’s administration and with the IAP nearing completion, it is not appropriate for the Chief Adjudicator to arrogate to himself the right to make archiving decisions through the Secretariat. And it is inappropriate for him also to make decisions about the retention and destruction of records that, but for the intervention of the IRSSA and the court’s overriding jurisdiction, would have been administered by Canada in the same manner as it administers the records and documents of government departments.

2. Completion of the IAP and the Shuttering of the Secretariat

[31] It was noted in Fontaine v. Canada (Attorney General) [“Non-Claim Records #1] that the IAP was nearing completion.[^18] That process has continued and is part of the movement toward concluding the administration of the IRSSA.

[32] The Chief Adjudicator’s completion strategy called for all remaining IAP claims to be resolved by year end 2020 and the Secretariat to be closed by April 1, 2021. The Secretariat was in fact closed down on March 31, 2021.

[33] In preparation for the closure of the Secretariat, consultations took place between Canada’s ministerial department, Aboriginal Affairs and Northern Development Canada (“AANDC”)[^19](now CIRNAC) and LAC about the disposition of the Secretariat’s records. There were also in camera discussions between the Chief Adjudicator and the IAP Oversight Committee about the disposition of these records.

[34] LAC evaluated the Secretariat’s records and also the records the Secretariat shared with AANDC (now CIRNAC) and issued “Disposition Authorization #2017/013. This authorization identifies the records to be sent to the archives and authorizes AANDC to destroy records with no archival value. AANDC maintains records with no archival value for periods of time for audit, legal and other purposes and then destroys them.

[35] The Secretariat was an office within a department, and as such was also a “department” for the purposes of Schedule I of the Financial Administration Act[^20] and for the purposes of the Auditor General Act.[^21] It fell within the ambit of the “public service” under the Public Service Employment Act[^22] and the Federal Public Sector Labour Relations Act.[^23] It was a “government institution” for the purposes of Schedule I of the Access to Information Act[^24] and of the Schedule to the Privacy Act,[^25] and thus it was a government institution for the purposes of the Library and Archives Canada Act.[^26] Furthermore, it was part of the “Crown” for the purposes of the Crown Liability and Proceedings Act.[^27]

[36] Save for specific financial, funding, auditing and human resource matters, the Secretariat was under the direction of the Chief Adjudicator and independent from the AANDC (now CIRNAC). The Secretariat’s employees worked in separate office space with separately keyed entrances. The Secretariat utilized AANDC’s electronic records system, but it maintained separate paper files from AANDC.

[37] Secretariat records were separate from AANDC’s records, except where operational requirements require sharing. The paper and electronic records held by the Secretariat are governed by a formal “IRSAS File Plan.” The records were divided into three categories: (a) Claim Records; (b) Non-Claim Records, and (c) Government Administrative Records.

[38] The Secretariat operated under the Department Policy on Information Management. The Policy required each employee to handle departmental information in a manner that facilitated access while ensuring privacy and security requirements were met.

[39] Beginning 2003, the Secretariat has created records in support of its role in the administration of first, the forerunner to the IAP, the Alternative Dispute Resolution (“ADR”) process (which existed prior to the IRSSA’s approval by the Courts) and latterly the IAP itself. The Secretariat used SADRE[^28] database to case-manage IAP claims.

[40] SADRE was developed by AANDC (now CIRNAC) for the ADR and later for Common Experience Payments (“CEP”) the IAP under the IRSSA and to assist Canada in its adversarial role in IAP hearings.

[41] SADRE was designed, however, to ensure the adjudicative independence of the Chief Adjudicator and the autonomy of the Secretariat. The requisite separation was achieved through the design of the SADRE database software. As a result, some information was shared, but some information was accessible only by the Secretariat and some information was accessible only by Canada through AANDC.

[42] In its administrative role in relation to the IAP, the Secretariat used the SADRE database and software to plan, monitor, manage, and report on the progress of the resolution of IAP claims. The Secretariat used SADRE to prepare Statistical Reports which have been disseminated to the IAP Oversight Committee and to the Supervising Courts. Some Statistical Reports have been disseminated to the public by postings on the Secretariat’s web site and in the Chief Adjudicator’s Annual and Quarterly Reports.

3. The National Centre for Truth and Reconciliation

[43] The NCTR was constituted pursuant to section 12 of Schedule “N” to the IRSSA.[^29] The NCTR is mandated to archive and store all records collected by the TRC and other records relating to Indian Residential Schools. The collections are to be accessible to former students, their families and communities, the general public, researchers, and educators.

[44] The NCTR came into being on National Aboriginal Day, June 21, 2013. The NCTR is hosted by the University of Manitoba in partnership with other entities across Canada, including Indigenous organizations, universities and colleges. The Agreements between the TRC and the University of Manitoba commits the NCTR to continuing the spirit and work of truth and reconciliation.

[45] The NCTR is governed in accordance with national and international ethical research and archiving principles, protocols, guidelines, and best practices for Indigenous and human rights research and archiving, including aboriginal principles of ownership, control, access and possession, protocols for Native American archival materials, and the Tri-Council Policy Statement: Ethical Conduct of Research Involving Humans (particularly the chapter on First Nations, Inuit and Métis peoples of Canada).

[46] The NCTR is a dedicated, national institution for the preservation and study of the history of Indian Residential Schools. Its governance structure includes representation of Indigenous people and Indian Residential School survivors, and it adheres to national and international ethical research and archiving principles and guidelines.

[47] The NCTR has a mandate to make its collections accessible to survivors, to researchers and educators, and to the public. The NCTR’s mandate and objectives include establishing an archival repository of the Indian Residential Schools that is as complete as possible, including records of the history and legacy of the schools and the remedies applied to address their negative effects.

[48] Records held at the NCTR are governed by a comprehensive information and privacy regime established by two Manitoba statutes, The National Centre for Truth and Reconciliation Act,[^30] and The Freedom of Information and Protection of Privacy Act[^31] (“FIPPA”).

[49] Section 6 of The National Centre for Truth and Reconciliation Act allows NCTR’s Director to enter into written agreements with a donor of records.[^32] These agreements can include a commitment to restrict the disclosure of records of particular sensitivity, notwithstanding the presumptive right of access in FIPPA.

4. The IRRSA and IAP Records

[50] Schedule N, section 11 (the Mandate of the Truth and Reconciliation Commission or “TRC”), states as follows:

Insofar as agreed to by the individuals affected and as permitted by process requirements, information from the Independent Assessment Process (IAP), existing litigation and Dispute Resolution processes may be transferred to the Commission for research and archiving purposes.

[51] This provision should be read in conjunction with section 12 of Schedule N, which provides that the materials created or received by the TRC will be placed with a national research centre that is accessible to former students, researchers, and the general public. Section 12 states:

A research centre shall be established, in a manner and to the extent that the Commission’s budget makes possible. It shall be accessible to former students, their families and communities, the general public, researchers and educators who wish to include this historic material in curricula.

For the duration of the term of its mandate, the Commission shall ensure that all materials created or received pursuant to this mandate shall be preserved and archived with a purpose and tradition in keeping with the objectives and spirit of the Commission’s work.

[52] Canada and the TRC transferred records to the NCTR by way of Trust Deed dated June 21, 2013. These records include collections from church archives and different federal government institutions. These records became the "Settled Property" of the Trust Deed. The archive at the NCTR was intended to autonomous, independent from Canada, and under the control or supervision of Indigenous peoples.

[53] Conveying the history of Indian Residential Schools was a central aspect of the IRSSA. The obligations that Canada and Church entities undertook included the obligation to compile and produce historical documents to address the history and ongoing legacy of the Residential School System.

[54] Although the IRSSA does not expressly address what should be done with IAP Non-Claim Records, the Settlement Agreement does not preclude that these records be archived at the NCTR, and the spirit and intent of the IRSSA suggests that these documents along with the documents collected and transferred by the TRC and the documents governed by the Orders made in the Fontaine v. Canada (Attorney General) [Claim Records] decisions, should be archived at the NCTR.

C. Canada’s Proposal

[55] The key components of Canada’s Proposal are as follows:

a. The Non-Claim Records Collection would be derived from a corpus of electronic and paper records comprising approximately 409 GB of electronically formatted records and between 4.5 linear metres and 6 linear metres (15 to 20 boxes) of paper records, to be scanned by Secretariat staff.

b. Library and Archives Canada (“LAC”) would undertake an appraisal of the Secretariat’s records in the ordinary course under the Library and Archives Canada Act.

c. LAC would develop and provide CIRNAC with a list of archival selections in the form of a Validation Report with a companion Application Guide that is modelled on the IRSAS Information Resources of Business Value (IRBV) Inventory supplied to LAC. This would facilitate CIRNAC’s work in segregating non-archival from archival records according to the file subject and primary number that IRSAS uses to organize its records. The archival records would will form the Non-Claim Records Collection.

d. IRSAS will review its holdings of Non- Claim Records and will endeavour to exclude:

i. IAP Personal Information;

ii. Draft or duplicative Non-Claim Records; and,

iii. Records subject to solicitor-client privilege or litigation privilege held by the Chief Adjudicator.

e. The IRSAS would transfer their Non-Claim Records to Canada via GCdocs, at the sunset of the IRSAS. IRSAS employees absorbed into CIRNAC after sunset will continue to work on the Non-Claim Records after the initial transfer date.

f. CIRNAC would follow LAC’s Application Guide in order to identify archival records and to distinguish them from non-archival records. CIRNAC would copy records of archival value from the IRSAS’ GCDOCS inventory in order to create the Non-Claim Records Collection.

g. In addition to the review to be undertaken by IRSAS, CIRNAC would perform a 100% document review of the Non-Claim Records Collection prior to transfer to the NCTR. By way of this same process, CIRNAC would endeavour to exclude privileged, confidential and secret documents from the Non-Claim Records Collection, while also removing documents from the court-ordered “excluded” categories.

h. Consistent with the direction given in Fontaine v. Canada (Attorney General), 2020 ONSC 366 [“Non-Claim Records #1], CIRNAC would remove certain categories of records from the Non-Claims Records Collection.

i. CIRNAC would redact all documents including the Reports to the Court in compliance with the Access to Information Act, the Privacy Act, and the 2014 In Rem Order of this court.

j. The following information will be redacted or, alternatively and if necessary, the whole document, parent document, and associated attachments may be removed:

i. IAP Personal Information as per the definition of that term contained in the 2014 In Rem Order;

ii. Solicitor-client privilege and litigation privileged documents, confidential and secret documents;

iii. Reports to the Court will be redacted as appropriate by CIRNAC and provided to the Administrative Judges of the IRSSA for review and authorization to transfer.

k. Personal information (which is defined in the Privacy Act as including information about an identifiable individual that is recorded in any form) would be redacted.

l. It is anticipated that the work would be complete by 2026/2027, but Canada would make progressive transfers to the NCTR on a yearly basis in the interim.

m. The NCTR would be required to notify CIRNAC in writing if its staff or authorized researchers come across any information or records that ought to have been excluded from the Non-Claim Records Collection and thus should not be in its possession. The NCTR would be required to proceed to destroy any such information or records and to confirm the fact of destruction to CIRNAC in writing forthwith.

D. Responses to Canada’s Proposal

1. The NCTR’s Position

[56] In its written submissions, the NCTR sought the following adjustments and/or orders in relation to Canada’s proposal:

a. The NCTR be provided with a copy of the final LAC Validation Report as approved on or after November 16, 2020;

b. The NCTR be provided with a copy of the Appendix to the final approved Validation Report;

c. LAC, and not CIRNAC, undertake the review and transfer of IRSAS records to the NCTR in accordance with the January 20, 2020 order;

d. Records transferred to the NCTR shall not be redacted of personal identifying information as defined in the Privacy Act;

e. A random 10% review of the few file categories that may risk containing IAP Personal Information be undertaken by LAC prior to the transfer of these record sets to the NCTR;

f. No review or removal of “confidential” information from the record set be undertaken until such time as there is clear definition about what constitutes “confidential” information and the NCTR has been given an opportunity to respond to, and make submissions on, this definition;

g. The word “secret” be removed from Canada’s Proposal;

h. Any archival record redacted or removed from the IRSAS records transferred by CIRNAC to LAC and by CIRNAC/LAC to the NCTR must be accompanied by a detailed explanation identifying the nature, date, volume and general category of the redacted/removed content of the record;

i. The Non-Claims Record Collection produced to the NCTR shall include the spreadsheets, detailed file inventories and methodologies/reporting documents related to the inventorying of IRSAS records by CIRNAC, the application of the LAC Validation Report by CIRNAC and the transfer of archival records to LAC.

j. The format of the transfer by CIRNAC or LAC of copies of Non-Claim Records to the NCTR shall be by way of e-transfer in accordance with CAAIS;

k. Paragraph 3(a)(vii) of the Proposal should be amended prior to approval to refer specifically to solicitor-client litigation privilege belonging to the Chief Adjudicator;

l. The transfer of Non-Claim Records to the NCTR shall be completed by December 31, 2022; and

m. The Non-Claim Records transferred to the NCTR shall include copies of the School Narratives and supporting historical documents held by the Secretariat.[^33]

[57] As expressed during oral submissions, the NCTR’s main objection to Canada’s proposal was that it would mandate redaction of the entire collection. This will create a major access to information issue, because of the delay resulting from redacting 409 GB of data (the equivalent of 100 million sheets of double-sided paper). Ms. Birenbaum pointed out that the Access to Information Act[^34] creates a presumptive right of access.

[58] In addition, Ms. Birenbaum objected to the inclusion of Appendix “H” to Annex to the draft Order (which was provided by Canada after the NCTR had completed its written submissions). Appendix “H” referred to CIRNAC’s “extensive experience, knowledge, and expertise regarding the management of government information in accordance with legislation and Treasury Board directives,” the latter including Treasury Board’s Standard on Security Categorization (updated July 1, 2019, and promulgated under its Directive on Security Management).[^35] This standard recognizes three categories of classified information:

J.2.4.1 Classified: Information is categorized as “classified” (that is, “Confidential,”

“Secret” or “Top Secret”) when unauthorized disclosure could reasonably be expected to

cause injury to the national interest:

J.2.4.1.1 Top Secret: Applies to the very limited amount of information

when unauthorized disclosure could reasonably be expected to cause

exceptionally grave injury to the national interest;

J.2.4.1.2 Secret: Applies to information when unauthorized disclosure could

reasonably be expected to cause serious injury to the national interest; and

J.2.4.1.3 Confidential: Applies when unauthorized disclosure could

reasonably be expected to cause limited or moderate injury to the national interest;

2. The AFN’s Position

[59] In its written submissions, the AFN submitted that Canada’s Proposal raised numerous issues that must be addressed by the court, including with respect to the decision-making regarding the review and redaction of records by CIRNAC and the delays associated with the transfer of records.

[60] The AFN was also concerned with ensuring accountability and transparency within the decision-making and redaction processes, which it characterized as “cumbersome.” The AFN called for the maintenance of as complete a public record as possible in relation to the residential school experience and its impacts on First Nations people. The AFN submitted that the personal and collective right to know, rights to justice, and the state’s duty to remember demand no less. The AFN further pointed out that preservation of this history was a central aspect of the IRSSA.

[61] The AFN also expressed concern about the projected 2026/2027 completion date for the transfer of the Non-Claim Records Collection to the NCTR and suggested that the court consider setting a firm deadline for completion of that transfer.

[62] In oral submissions, Mr. Wuttke indicated that the AFN was generally satisfied with Canada’s proposal as it had been revised for the hearing. Its main concern was that the court’s order should not preclude future gifts from Canada to the NCTR. As Mr. Wuttke put it, “We don’t want the framework to be frozen in time.” He expressed the view that a permissive clause would address many of the AFN’s concerns. The order should be flexible enough to permit Canada and the NCTR to act if they agree on a future course of action.

[63] Mr. Wuttke further submitted that the order should not mandate what he termed “full redactions.” With appropriate measures in place, researchers should be able to access unredacted documents in the Non-Claim Records Collection at the NCTR.

3. Canada’s Responses

[64] On Canada’s behalf, Ms. Coughlan indicated that Canada had no objection to an amendment to the draft Order that would permit documents not yet located to be transferred to the NCTR.

[65] On the redactions issue, Ms. Coughlan pointed out that: (a) IAP documents would be excluded; and (b) the redaction of some documents would be required by the federal legislation that has as its object the protection of personal privacy.[^36] The legislation cannot be ignored; 100% of the documents would have to be reviewed in order to remove confidential information. Those documents should be redacted by Canada in accordance with those provisions before copies are provided to the NCTR. The process would be for unredacted documents to be provided to LAC, which would preform the redactions at the time of accessioning.

[66] Ms. Coughlan submitted that a requirement that Canada prepare a schedule setting out an explanation of redactions would be burdensome. However, Canada would, of course, provide such a schedule pursuant to court order.

[67] Ms. Coughlan explained that Appendix “H” was included in Canada’s Proposal in order to illustrate how CIRNAC would apply the federal suite of legislation and Treasury Board guidance, and the Treasury Board’s Standard on Security Categorization in particular. She was content to remove it from Annex “A” to the Order.

E. Discussion and Analysis

[68] I now have the benefit of the Court of Appeal’s reasoning in Fontaine v. Canada (Attorney General), [“Non-Claim Records #1], which helps to abbreviate the analysis required to determine Canada’s RFD.

[69] In relation to the directions that I gave as to Non-Claim Records, the Court of Appeal stated as follows:

(3) The Non-Claim Records [89] The NCTR submits that the Supervising Judge ignored Canada’s duty under the IRSSA to remember and to preserve records of enduring historical value and prioritized the privacy of state actors over the rights of Indigenous peoples, and the public interest in general, to the preservation of these records. [90] In our view, these submissions have no merit and can be dealt with summarily. [91] While the NCTR is an appropriate archive, it has no legal or contractual right to demand the transfer of any documents. As Canada argues, the IRSSA gives the NCTR no such authority. In fact, the IRSSA is otherwise silent regarding the disposition of the Non-Claim Records. [92] Further, the Supervising Judge expressly referenced and acknowledged, at paras. 127-31 of his reasons, the historical and archival importance of the Non-Claim Records, including those pertaining to the administration and workings of the Chief Adjudicator, the IAP Oversight Committee, and the Secretariat. As he stated at para. 193 of his reasons:

The Claim Records and the Non-Claim Records are both important parts of creating a comprehensive historical record and of fulfilling Canada’s duty to compile a comprehensive and accessible record based on human rights principles that, in turn, respond to a right to justice, a personal and collective right to know, and the state’s duty to remember.

[93] The Supervising Judge was required to balance non-claimant individual rights to privacy, confidentiality, and legal privilege with the goals enshrined in the IRSSA. In doing so, he determined that the following categories of Non-Claim Records contained confidential, sensitive, and privileged information. This determination was rooted firmly in the unchallenged evidence of Mr. Tetreault and the archival assessment of Edward Tompkins, appended to Mr. Tetreault’s affidavit, which the Supervising Judge accepted.[^37]

[70] The Court of Appeal went on to agree with my intended disposition of the adjudicator performance records, non-public IAP Oversight Committee records and the complaint and investigation records.[^38]

[71] The Court of Appeal further found no error in the imposition of a general prohibition against the inclusion of records in the Non-Claim Records collection where there is any risk that these records could reveal confidential and privileged information.[^39]

[72] The question now before me is whether Canada’s proposal is consistent with the principles I have previously articulated and that have now been considered by the Court of Appeal.

[73] I conclude that with some modest variation explained below, Canada’s proposal is consistent with those principles.

[74] I conclude that Canada’s proposal presents a satisfactory means of dealing with the Non-Claims Records. In my view, Canada’s proposal is consistent with the legal framework applicable to the Non-Claim Records, namely: (a) the privacy and other legislation governing government document retention; (b) the IRSSA; and (c) the IRSSA-specific jurisprudence, and in particular, the In Rem Order.

[75] Canada’s proposal fairly addressed the concerns of both the NCTR and the AFN.

[76] Further, any historical concerns are addressed by providing copies of the pertinent Non-Claims records as they have been defined by the Court of Appeal.

[77] As noted above, the NCTR objected to redaction of personal identifying information as defined in the Privacy Act and took the position that redaction of the entire collection will create a significant access to information issue. However, I regard the redaction of documents as both appropriate and necessary. Put simply, historians will have to be patient because redaction is inevitably a time-consuming process. No history is being lost.

[78] Moreover – and this bears emphasis – there is a prodigious difference between the history of Canada’s Indian Residential School system (which has been chronicled by the TRC and historians) and the history of the IAP, which was designed and implemented to compensate residential school survivors.

[79] Some modification of Canada’s proposal is necessitated by the Court of Appeal’s decision. Consistent with guidance offered in it, I defer to another occasion consideration of whether Static Reports shall be developed and produced by the Indian Residential Schools Adjudication Secretariat and provided to the National Centre for Truth and Reconciliation for archiving.

[80] It will be incumbent on the proponent of the Static Reports’ development, production and archiving to bring a further RFD supported by evidence establishing that: (1) the confidentiality of IAP claimants can be maintained; (2) the information contained in the Static Reports cannot be manipulated or spun to draw unreliable and contentious conclusions; and, (3) the development, production and archiving of the proposed Static Reports will advance the goals of truth and reconciliation.[^40]

F. Conclusion

[81] For the above reasons, I allow Canada’s RFD and direct that the Order attached as Appendix “A” issue.

[82] I make no order as to costs.

Perell, J.

Released: April 15, 2021

G. Order

Appendix “A”

Order

Court File No. 00-CV-129059CP

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE MR. ) _______DAY, THE ______

JUSTICE PAUL PERELL ) DAY OF APRIL, 2021

BETWEEN:

LARRY PHILIP FONTAINE, et al.

Plaintiffs

• and –

THE ATTORNEY GENERAL OF CANADA, et al.

Defendants

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

ORDER

(re: NON-CLAIM RECORDS REQUEST FOR DIRECTION)

THE REQUEST FOR DIRECTION the Attorney General of Canada (Canada) respecting approval of its proposal to archive copies of Non-Claim Records with the National Centre for Truth and Reconciliation, arising from the January 20, 2020 decision of this Honourable Court (2020 ONSC 366), having been filed on September 30, 2020.

ON READING Canada’s Request for Direction and Proposal for the Archiving of Copies of Non-Claim Records with the National Centre for Truth and Reconciliation, attached hereto as Annex “A”, and the written submissions of the National Centre for Truth and Reconciliation and the Assembly of First Nations.

AND ON HEARING the submissions of counsel for Canada, the National Centre for Truth and Reconciliation and the Assembly of First Nations in connection with Canada’s Request for Direction and Proposal for the Archiving of Copies of Non-Claim Records with the National Centre for Truth and Reconciliation.

THIS COURT ORDERS that:

1. Canada’s Request for Direction is allowed; and

2. Canada’s Proposal for the Archiving of Copies of Non-Claim Records with the National Centre for Truth and Reconciliation, attached hereto as Annex “A” is accepted.

3. Nothing in this Order, including the contents of Canada’s Proposal, shall be construed as amending or varying the terms of this Court’s January 20, 2020 Order respecting the Non-Claim Records, as varied by the Court of Appeal for Ontario. For greater certainty, with reference to Paragraphs 4 and 5 of the January 20, 2020 Order, nothing in the Proposal shall require records subject to solicitor-client privilege or litigation privilege belonging to the Chief Adjudicator to be transferred to Canada.

4. Nothing in this Order shall be construed as determining whether Static Reports shall be developed and produced by the Indian Residential Schools Adjudication Secretariat and provided to the National Centre for Truth and Reconciliation for archiving. The issue as to whether Static Reports shall be developed and produced by the Indian Residential Schools Adjudication Secretariat and provided to the National Centre for Truth and Reconciliation for archiving will be the subject of a further Order of this Court.

The Honourable Justice Perell

Annex “A”

PROPOSAL FOR THE ARCHIVING OF COPIES OF NON-CLAIM RECORDS WITH THE NATIONAL CENTRE FOR TRUTH AND RECONCILIATION

I. BACKGROUND

On January 20, 2020, the Honourable Mr. Justice P. Perell of the Ontario Superior Court of Justice permitted Canada to retain the bulk of the administrative records created by the Indian Residential Schools Adjudication Secretariat (IRSAS) and the Chief Adjudicator of the Independent Assessment Process (IAP). For present purposes, the entire corpus of those documents is known as the Non-Claim Records. Perell J went on to order Canada to create a proposal for the archiving of copies of certain Non-Claim Records with the National Centre for Truth and Reconciliation (NCTR). Perell J excluded certain documents from the collection to be delivered to the NCTR and asked Canada to present its proposal to him by way of a further Request for Direction. Perell J made the above decision in his capacity as Eastern Administrative Judge and Ontario Supervising Judge of the Indian Residential Schools Settlement Agreement (IRSSA).

This document, along with its attachments, constitutes Canada’s proposal in response to the January 20, 2020 Order of Perell J. Canada circulated an earlier version of this proposal on September 30, 2020, including an express provision that it would be willing to accept feedback through the Request for Direction process. Groups participating in Canada’s Request for Direction had until December 18, 2020 to express their positions on Canada’s proposal and to signal their intention to participate in the litigation proceeding. Only the NCTR and the Assembly for First Nations (AFN) provided their response positions, which Canada has incorporated aspects of in this final draft of its proposal.

II. OBJECTIVES

• To designate and assemble a "Non-Claim Records Collection" consisting of copies of administrative records regarding the Independent Assessment Process

• To ensure the Non-Claim Records Collection complies with the guidance of Perell J on questions of redaction and excluded materials

• To set out the plan under which the Non-Claim Records Collection will be sent to the NCTR for archiving in aid of the goal of preserving a comprehensive historical record regarding Indian Residential Schools and their legacy and of promoting reconciliation with former students, their families and communities, and other Canadians

III. SCOPE

The Non-Claim Records Collection will be comprised of administrative records regarding the IAP and held by the Indian Residential Schools Adjudication Secretariat, to be appraised by Library and Archives Canada (LAC) archivists for historical or archival value. The collection will consist of born-digital or digitized (scanned) records created and/or managed by the IRSAS that document the range of administrative activities conducted by IRSAS staff in support of the Chief Adjudicator’s mandate under the IRSSA. The creation and donation of copies of the Non-Claim Records Collection to the NCTR is intended to make available historical information relating to the administration of the IAP and to facilitate a better understanding of the role of IRSAS in the implementation of the IAP.

Consistent with the Order of Perell J, the Non-Claim Records Collection will consist of a range of record types that document the scope of activities undertaken by IRSAS. These types are:

• Communications

• Policies, plans, strategies, communication products for claimants, the public, and stakeholders

• Management and Oversight

• Relations with stakeholders such as the courts
• Direction to adjudicators
• Strategic policy and planning of IRSAS activities
• Policy research and analysis
• Governance and stakeholder relations through external and internal committee participation
• Performance and reporting of IRSAS activities
• Adjudication management

• Indian Residential Schools Adjudication Secretariat Outreach

The Non-Claim Records Collection will also be responsive to the category-specific requirements imposed by Perell J in his January 20, 2020 decision, as varied (in the case of Static Reports) by the Court of Appeal for Ontario’s April 1, 2021 decision. In light of Paragraph 3 of the resulting order,[^41] Canada will include the following in the Non-Claim Records Collection:

• Reports to the Court with approved redactions

• Publically-available IAP Oversight Committee Records (namely, published minutes of meetings)

• Complaint Records that relate to information that has been disclosed to the public or that have been revealed to the public (e.g. previously through court decisions)

• Copies of existing Statistical Reports

Also in light of Paragraph 3 of the January 20, 2020 order as varied by the Court of Appeal for Ontario, while such records will come to Canada upon transfer by the IRSAS, the Non-Claim Records Collection will exclude:

• Other records from the IAP Oversight Committee or the Chief Adjudicator’s Reference Group (including, but not limited to, in camera minutes, agendas, document packages, email exchanges, correspondence between committee members, and expense vouchers for travel costs)

• Complaints Records (except as noted above)

• Adjudicator Personal Records, including adjudicator personnel or performance reports

• Draft or duplicate Non-Claim Records

• Records containing IAP Personal Information (as defined in the 2014 In Rem Order) or at risk of revealing IAP Personal Information

• Records covered by solicitor-client privilege or litigation privilege or at risk of revealing confidential or privileged information

IV. VOLUME AND FORMAT OF NON-CLAIM RECORDS

The Non-Claim Records remain housed with the IRSAS at present. They exist in electronic and paper formats.

In April 2020, IRSAS estimated the total volume of their current holdings of electronically formatted Non-Claim Records to be approximately 409 GB.

IRSAS has further estimated the paper versions of Non-Claim Records to comprise between 4.5 linear metres and 6 linear metres (15 to 20 boxes). Paper records are located in Regina only and they will be provided in high resolution electronic format (scanned) by the IRSAS.

The Non-Claim Records Collection will be derived from this corpus of electronic and paper records using the principles elaborated below. Accordingly, it is anticipated that the final Non-Claim Records Collection will be smaller in volume than the entirety of the records currently held by IRSAS as a result of the removal of non-archival records and other materials prior to transfer to the NCTR.

V. ROLES AND RESPONSIBILITIES

A. LIBRARY AND ARCHIVES CANADA (LAC)

LAC has been or will be involved in the creation of the Non-Claim Records Collection in the following ways:

1. Appraisal: Identifying records of archival value according to activity/business process of IRSAS

The first phase consists of identifying records of archival value according to activity/business process of the IRSAS and documenting the recommendations in a LAC Validation Report (the formal nomenclature used to refer to appraisal reports). The Validation Report arises under Disposition Authorization 2017/013.[^2] The final draft entitled “Validation Report for Indian Residential Schools Adjudication Secretariat (IRSAS) Related to Operational Program Area - Residential School Resolution” is attached.[^3] The relevant records require organization in preparation for copying based on their format requirements.

Appraisal Methodology

LAC’s mandate is to preserve government’s historical memory. LAC archivists will employ a macro-appraisal methodology in order to identify the best available source for documenting activities of long-term interest to Canadians. This approach emphasizes the context of records creation to understand the role of the records originator within society and the Government of Canada, its relationship to other government institutions and citizens, and its mandate over time.

Evaluation of IRSAS Mandate and Activities

In order to conduct appraisals, LAC archivists are encouraged to use all information previously created by an institution that can prove helpful in determining the context of record creation and the recordkeeping capacity of the institution.

In support of this objective, LAC held consultations with IRSAS staff and reviewed IRSAS -supplied information including the appraisal of IAP Non-Claim Records conducted by Mr. Edward Tompkins on behalf of the Chief Adjudicator (Affidavit of Roger Tetreault, Exhibit M, “IRSAS Archival Appraisal of Non-Claim Records”).[^42] Mr. Tompkins’ appraisal report provides context for understanding the business activities IRSAS and his methodological approach is informed by macro-appraisal.

LAC will, if possible, conduct a site visit of IRSAS to review the Non-Claim Records as part of its appraisal work. However, as a result of the COVID-19 pandemic, LAC is unlikely to be able to complete its work in this way and may need to explore other options to conduct its appraisal. Nevertheless, this factor has contributed to delays in LAC’s appraisal work.

Archival Determinations

LAC archivists identified records of archival or historical value that document the breadth of activities undertaken by IRSAS in support of its mandate and the goals of the IRSSA (see “Scope”).

LAC archivists have submitted the appraisal report and archival recommendations to LAC management, who have approved the approach. The archival selections have also been conveyed to IRSAS and Crown-Indigenous Relations and Northern Affairs Canada (“CIRNAC”) Information Management Branch in a companion Application Guide (attached)[^43] in preparation for the disposition of Non-Claim Records and for the eventual transfer of the Non-Claim Records Collection to the NCTR.

2. Preparation of Records for Disposition and Transfer

LAC archivists will continue to work collaboratively with the IRSAS and CIRNAC’s Recordkeeping specialists. The goal of the collaboration is to ensure that the Non-Claim Records Collection includes all archival records in compliance with the January 20, 2020 Order of Perell J, and that they are well organized and inventoried to facilitate a successful transfer to the NCTR on the timelines set out in the chart below.

3. Consultations

In the development of this proposal and the work associated with it, LAC has engaged in on-going consultations with the IRSAS and other government departments to gather information about the Non-Claim Records and to ensure that the approach to creating the Non-Claim Records Collection is viable and appropriate.

A meeting occurred between the NCTR and LAC on September 29, 2020. The NCTR, having appealed from the January 20, 2020 order of Perell J, asserts an entitlement to the Non-Claim Records at large and does not accept the premise for Canada’s proposal. It unsuccessfully sought a stay of this proposal before the Court of Appeal for Ontario. As noted by Pepall JA in dismissing the NCTR’s stay motion: “I am also not persuaded that Canada’s RFD should be delayed, as it may be amended if that proves to be necessary as a result of the appeal decision.”[^44]

In light of the pending appeal, Canada presented this proposal to the Eastern Administrative Judge on the timelines he has endorsed, while recognizing that the content may need to be adapted based on the outcome of the appellate proceedings. In its original draft of this proposal, Canada indicated its willingness to adapt its contents in light of any feedback generated through the litigation process and reserved the right to circulate a further version to the Eastern Administrative Judge. The current draft arises in light of this commitment, incorporating certain suggestions made by the NCTR and AFN.

4. Non-Claim Records Collection Development

LAC shall develop and provide CIRNAC with a list of archival selections in the form of a Validation Report with a companion Application Guide that is modelled on the IRSAS Information Resources of Business Value (IRBV) Inventory supplied to LAC. This will facilitate CIRNAC to segregate non-archival from archival records according to the file subject and primary number that IRSAS uses to organize its records. The archival records will form the Non-Claim Records Collection.

VI. INDIAN RESIDENTIAL SCHOOLS ADJUDICATION SECRETARIAT

1. Creation of Non-Claim Records Collection

To support the application of appraisal and disposition decisions as well as the overall goal of providing a copy of the Non-Claim Records Collection to the NCTR, IRSAS are pursuing a multi-phase clean up project. Between now and the sunset of the IRSAS, IRSAS will be filing their electronic records into the Classification Folder Structure (CFS) of CIDM, with a final planned migration of this information to GCdocs.[^45] The goal is to have a single collection in CIDM/GCdocs organized according to the IRSAS File Plan.[^46]

In accordance with the August 6, 2014 In Rem Order of Perell J, as largely upheld by the Supreme Court of Canada in 2017, and the January 20, 2020 Non-Claim Records Order of Perell J (currently under appeal by the NCTR), IRSAS will review its holdings of Non-Claim Records and will endeavour to exclude:

a) IAP Personal Information;

b) Draft or duplicative Non-Claim Records; and,

c) Records subject to solicitor-client privilege or litigation privilege held by the Chief Adjudicator.

Further, IRSAS will operationalize LAC’s Validation Report by giving effect to decisions on retention and disposition. For more recent records, the Validation Report might not yet have application. IRSAS will govern itself in accordance with Perell J’s January 20, 2020 Order.[^47]

For greater certainty, IRSAS is under no obligation to identify or isolate documents from the categories comprising “Excluded Records” under the January 20, 2020 order of Perell J. IRSAS must transfer all Excluded Records to CIRNAC without destroying or redacting them, unless otherwise required to do so. As described below, CIRNAC itself may retain Excluded Records for transfer to LAC but may not provide Excluded Records to the NCTR.

2. Transfer of Non-Claim Records to Canada

The IRSAS shall transfer their Non-Claim Records to Canada via GCdocs, at the sunset of the IRSAS. IRSAS employees absorbed into CIRNAC after sunset will continue to work on the Non-Claim Records after the initial transfer date.

VII. CROWN-INDIGENOUS RELATIONS AND NORTHERN AFFAIRS CANADA (CIRNAC)

1. Creation of Non-Claim Records Collection

CIRNAC will follow LAC’s Application Guide in order to identify archival records and to distinguish them from non-archival records. CIRNAC will copy records of archival value from the IRSAS’ GCDOCS inventory in order to create the Non-Claim Records Collection.

2. Review and Redaction of Non-Claim Records Collection

It must be recognized by all participants in this proposal that the delivery of a substantial volume of IAP-related records carries with it a risk of disclosing IAP Personal Information. CIRNAC is mindful of that risk and, in addition to the review to be undertaken by IRSAS, it will perform a 100% document review of the Non-Claim Records Collection prior to transfer to the NCTR. By way of this same process, CIRNAC will endeavour to exclude privileged, confidential and secret documents from the Non-Claim Records Collection, while also removing documents from the court-ordered “excluded” categories.

Although CIRNAC will oversee the above-noted review of the Non-Claim Records Collection, it may engage other services to assist in the review itself. In particular, CIRNAC intends to utilize the services of the Evidence Management Team within the Department of Justice to complete the task. The Evidence Management Team has extensive experience in reviewing documents for production in complex litigation.

3. Guidelines for Redaction and Removal of Records

a) Consistent with the January 20, 2020 Order of Perell J on the records categories to be excluded from the Non-Claim Record Collection as varied by the Court of Appeal for Ontario, CIRNAC will remove the following records:

i. Records from the IAP Oversight Committee or the Chief Adjudicator’s Reference Group, such as, for example, in camera minutes, agendas, document packages, email exchanges, correspondence between committee members, and expense vouchers for travel costs (note: publically published minutes will remain in the Collection);

ii. Complaints Records where the records at stake includes information not otherwise publically available;

iii. Adjudicator Personal Records, including adjudicator personnel or performance reports;

iv. Draft or duplicate Non-Claim Records;

v. Records containing IAP Personal Information or at risk of revealing IAP Personal Information; and

vi. Records covered by solicitor-client privilege or litigation privilege or at risk of revealing confidential or privileged information.

b) CIRNAC will redact all documents including the Reports to the Court in compliance with the Access to Information Act, the Privacy Act, and the 2014 In Rem Order of Perell J.

c) The following information will be redacted or, alternatively and if necessary, the whole document, parent document, and associated attachments may be removed:

i. IAP Personal Information as per the definition of contained in the 2014 In Rem Order of Perell J.[^48] For greater certainty, CIRNAC will redact personal Information about or identifies a claimant, alleged perpetrator or other affected individual(s) in respect of an IAP Claim that has been obtained through the administration of an Independent Assessment Claim. This includes, but is not limited to, the individual’s name, claim number, address, allegations, statements, etc;

ii. Solicitor-client privilege and litigation privileged documents, confidential and secret documents;

iii. Should a record containing IAP Personal Information constitute an IAP Document for the purposes of the In Rem Order, the record will be treated in accordance with the requirements thereof, including destruction as and when necessary under that Order; and

iv. Reports to the Court will be redacted as appropriate by CIRNAC and provided to the Administrative Judges of the IRSSA for review and authorization to transfer.

4. Personal information as defined under the Privacy Act is to be redacted.

Personal information means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing:

a) race, national or ethnic origin, colour, religion, age or marital status;

b) education, medical, criminal or employment history of an individual or information about financial transactions;

c) any assigned identifying number or symbol;

d) address, fingerprints or blood type;

e) personal opinions or views except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution;

f) private or confidential correspondence sent to an government institution;

g) the views or opinions of another individual about the individual;

h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution; and

i) the name of the individual where it appears with other related personal information and where the disclosure of the name itself would reveal information about the individual.

5. What is not included?

For the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include:

a) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including;

i. the fact that the individual is or was an officer or employee of the government institution;

ii. the title, business address and telephone number of the individual;

iii. the classification, salary range and responsibilities of the position held by the individual;

iv. the name of the individual on a document prepared by the individual in the course of employment; and

v. the personal opinions or views of the individual given in the course of employment.

b) the fact that an individual is or was a ministerial adviser or a member of a ministerial staff, as those terms are defined in subsection 2(1) of the Conflict of Interest Act, as well as the individual’s name and title;

c) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services;

d) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit; and

e) information about an individual who has been dead for more than twenty years.

6. Transfer of Non-Claim Records Collection to the NCTR

CIRNAC will transfer documents to the NCTR as file types are reviewed, redacted and cleared for transfer during the 100% review process. CIRNAC will initially focus the review on IRSAS file types that have a lower risk for containment of IAP personal information, solicitor-client and litigation privilege and/or confidential or secret information.

It is anticipated that the work will be complete by 2026/2027.

To understand the rationale for this timeline, it must be recognized that:

a) A fairly large volume of materials is at stake;

b) The privileges, confidences, and exclusions in play requires a robust and detail-oriented review to be undertaken;

c) Archival processes may, by nature, take considerable time to complete;

d) Non-Claim Records will continue to be generated until the sunset of the IRSAS; and,

e) Records—including those yet to be generated—will have an operational life of at least two years.

Canada will mitigate these factors by making progressive transfers to the NCTR on a yearly basis.

CIRNAC will consult with the NCTR regarding mechanics and timing for the yearly transfers of Non-Claim Records Collection closer to the date of the first transfer (estimated for 2022). In determining the mechanics of transfer, CIRNAC will be open to e-transfer or other means, subject to feasibility, security, and technological capacity.

VIII. NATIONAL CENTRE FOR TRUTH AND RECONCILIATION

As noted, Canada is mitigating the risk of disclosure of IAP Personal Information and other precluded information or records to the NCTR through a 100% document review process to exclude such information from the Non-Claim Records Collection. However, if any such erroneous disclosure is observed by either Canada or the NCTR in the future, efforts shall be made to correct the matter. In particular, the NCTR shall notify CIRNAC in writing if its staff or authorized researchers come across any information or records that ought to have been excluded from the Non-Claim Records Collection and thus should not be in its possession. The NCTR shall proceed to destroy any such information or records and shall confirm the fact of destruction to CIRNAC in writing forthwith.

IX. TIMELINES

ORGANIZATION	FUNCTION	DATE
LAC	Appraisal	November 16, 2020
IRSAS	Transfer of Non-Claim Records to CIRNAC via GCdocs	Upon the sunset of the Indian Residential Schools Adjudication Secretariat (Note: although transfers may occur on or before March 31, 2021, any further records held by IRSAS as of that date are deemed transferred after March 31, 2021 to CIRNAC upon the absorption of IRSAS staff into CIRNAC)
CIRNAC	100% review and redaction of Non-Claim Records	By 2026/2027 (to be prioritized on basis of file types least likely to contain IAP Personal Information)
CIRNAC	Transfer of Non-Claim records collection to the NCTR	2026/2027 (to be accomplished by yearly progressive transfers from CIRNAC to the NCTR

Appendices

A Fontaine v Canada (Attorney General) (20 January 2020), Toronto, Ont. S.C.J. 00-CV-192059CP (order)

B. Disposition Authorization # 2017/013

C. Validation Report for Indian Residential Schools Adjudication Secretariat (IRSAS) Related to Operational Program Area - Residential School Resolution”

D. IRSAS Archival Appraisal of Non-Claim Records

E. Application Guide

F. IRSAS File Plan

G. Fontaine v Canada (Attorney General) (6 August 2014), Toronto, Ont. S.C.J. 00-CV-192059 (order)

COURT FILE NO.: 00-CV-192059CP

DATE:2021/04/06

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 DECISION ________________________________________

Perell, J.

Released: April 15, 2021

[^1]: 2020 ONSC 366, var’d 2021 ONCA 203.

[^2]: Fontaine v. Canada (Attorney General), 2020 ONSC 366 [“Non-Claim Records #1], paras. 176-184.

[^3]: Fontaine v. Canada (Attorney General), 2020 ONSC 366 [“Non-Claim Records #1], paras. 210-211.

[^4]: Fontaine v. Canada (Attorney General), 2020 ONSC 366 [“Non-Claim Records #1], paras. 189-190.

[^5]: Pursuant to that direction, “Claim Records” are to continue to be dealt with in accordance with Fontaine v. Canada (Attorney General) [Claim Records], 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47. Canada was directed to employ the archivists at Libraries and Archives Canada (“LAC”) to designate and assemble a “Non-Claim Records Collection”, copies of which are to be sent to NCTR for archiving: Non-Claim Records #1, para. 10(e)(i),(ii).

[^6]: The items to be included in the Non-Claim Records Collection were: (1) copies of Existing Statistical Reports; (2) copies of IAP Oversight Committee Records that are publicly published Minutes of the IAP Oversight Committee; and (3) copies of Reports to the Courts with redactions approved by the Administrative Judges: Non-Claim Records #1, para. 10(e)(iii),(v),(viii).

[^7]: The items to be excluded from the Non-Claim Records Collection pursuant to Non-Claim Records #1 were (1) Static Reports, inclusion of which I concluded would contravene the Orders made in the Fontaine v. Canada (Attorney General) [Claim Records] decisions (a conclusion subsequently varied by the ONCA in Fontaine v. Canada (Attorney General), 2021 ONCA 203); (2) records of the IAP Oversight Committee and its ADR predecessor, the “Chief Adjudicator’s Reference Group,” including agendas and document packages, email exchanges and correspondence between committee members and expense vouchers for travel costs; (3) confidential and unpublished Minutes of in camera meetings of the IAP Oversight Committee; (4) Complaint Records; (5) Adjudicator Personal Records; (6) IAP Personal Information; (7) draft or duplicative records, (8) adjudicator personnel and performance records; and (9) information subject to solicitor-client privilege or litigation privilege: Non-Claim Records #1, para. 10(e)(iv),(vi),(vii),(ix),(x)(xi) . In particular, the Chief Adjudicator’s privileged material. I further directed that shall be excluded from the Non-Claim Records Collection if there is 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: Non-Claim Records #1, para. 10(e)(xii).

[^8]: The Court Administration Protocol appended to the Implementation Orders made on March 8, 2007 by each of the nine provincial and territorial superior courts that approved the Settlement Agreement (the “Courts”) required the Courts to designate two Administrative Judges from among the 9 (nine)judges who heard the motions for approval of the Agreement, or their successors, one Eastern Administrative Judge and one Western Administrative Judge: Court Administration Protocol, para. 1. The Court Administration Protocol further provided that “[a]ll 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.”

[^9]: Fontaine v. Canada (Attorney General), 2021 ONCA 203.

[^10]: Fontaine v. Canada (Attorney General), 2021 ONCA 203, paras. 106, 109. I note that at para. 15, the Court of Appeal stated that “on the rehearing, the Supervising Judge will need to determine the Chief Adjudicator’s current position regarding the proposed Static Reports.” The Adjudication Secretariat and the position of Chief Adjudicator ceased to exist on March 31, 2021, the day before the Court released its decision. It is unknown at this time how effect can be given to the Court’s order (reflected at para. 107) that “production of any further proposed Static Reports […] be in final form.”

[^11]: The nine courts are the British Columbia Supreme Court, the Alberta Court of Queen’s Bench, the Saskatchewan Court of Queen’s Bench, the Manitoba Court of Queen’s Bench, the Ontario Superior Court of Justice, the Quebec Superior Court, the Supreme Court of Yukon, the Northwest Territories Supreme Court and the Nunavut Court of Justice.

[^12]: 2017 SCC 47.

[^13]: 2018 ONSC 4179.

[^14]: 2016 ONCA 241.

[^15]: 2017 SCC 47.

[^16]: The Secretariat was the arm’s length department of the Government of Canada that provided administrative support for the Chief Adjudicator and for the IAP. As discussed below, it was closed down on March 31, 2021.

[^17]: Acting as the two Administrative Judges under the Court Administration Protocol appended to the Implementation Orders, my colleague Brown J. of the British Columbia Supreme Court and I issued a Joint Direction dated November 25, 2014, An appendix to the Joint Direction, the “Administrative Protocol for Addressing and Managing Complaints related to the Integrity of the Independent Assessment Process” called for appointment of an “Independent Special Advisor” to receive and act on complaints about counsel and others acting or IAP claimants. The Honourable Ian Pitfield, a retired judge of the British Columbia Supreme Court, has served in that role with distinction.

[^18]: Fontaine v. Canada (Attorney General) [“Non-Claim Records #1”], paras. 30, 31. The observations reflected there were as of January 20, 2020, more than 14 months ago.

[^19]: Formerly known as the Department of Indian Affairs and Northern Development, AANDC itself was renamed Indigenous and Northern Affairs Canada. On July 15, 2019, legislation came into effect, dissolving Indigenous and Northern Affairs Canada and formally establishing the mandates of two new departments, Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada.

[^20]: R.S.C. 1985, c. F-11.

[^21]: R.S.C. 1985, c. A-17.

[^22]: S.C. 2003, c. 22.

[^23]: S.C. 2003, c. 22.

[^24]: R.S.C. 1985, c. A-1.

[^25]: R.S.C. 1985, c P-21.

[^26]: S.C. 2004, c. 11.

[^27]: R.S.C. 1985, c. C-50.

[^28]: SADRE is an acronym for “Single Access to Dispute Resolution Enterprise”.

[^29]: Article 12 bears the heading “National Research Centre” and is set out below in its entirety:

A research centre shall be established, in a manner and to an extent that the [TRC]’s budget makes possible. It shall be accessible to former students, their families and communities, the general public, researchers and educators who wish to include this historic material in curricula. For the duration of the term of its mandate, the [TRC] shall ensure that all materials created or received pursuant to this mandate shall be preserved and archived with a purpose and tradition in keeping with the objectives and spirt of the [TRC’s] work. The [TRC] shall use such methods and engage in such partnerships with experts, such as Library and Archives Canada, as are necessary to preserve and maintain the materials and documents. To the extent feasible and taking into account the relevant law and any recommendations by the [TRC] concerning the continued confidentiality of records, all materials collected through this process should be made accessible to the public.

[^30]: CCSM c N20

[^31]: CCSM c F175

[^32]: Subsection 6(1) refers to “written agreements with other persons, governments and entities, including the Government of Canada and its departments and agencies, respecting the collection of records and information from them”.

[^33]: NCTR’s Position on Canada’s Proposal, para. 57.

[^34]: R.S.C. 1985, c. A-1.

[^35]: Available at https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=32614.

[^36]: The federal legislation includes the Access to Information Act, R.S.C. 1985, c. A-1, Schedule I; Library and Archives of Canada Act, S.C. 2004, c. 11; and the Privacy Act, R.S.C. 1985, c. P-21, Schedule.

[^37]: Fontaine v. Canada (Attorney General), 2021 ONCA 203 at paras. 89-93.

[^38]: Fontaine v. Canada (Attorney General), 2021 ONCA 203 at paras. 94-97.

[^39]: Fontaine v. Canada (Attorney General), 2021 ONCA 203 at paras. 98-105.

[^40]: Fontaine v. Canada (Attorney General), 2021 ONCA 203 at paras. 50-52, 83-84.

[^41]: Attached as Appendix A.

[^42]: Attached as Appendix D.

[^43]: Attached as Appendix E.

[^44]: Fontaine v Canada (Attorney General), 2020 ONCA 540 at para 16.

[^45]: GCdocs is the successor document management system to CIDM adopted by the Government of Canada and allows for the storage, search, retrieval and lifecycle management of information resources.

[^46]: Attached as Appendix F.

[^47]: See Appendix A at para 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.”

[^48]: Attached as Appendix G.