Court File and Parties
COURT FILE NO.: 00-CV-192059
DATE: 2021/06/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LARRY PHILIP FONTAINE et.al.
Plaintiffs
- and –
THE ATTORNEY GENERAL OF CANADA, et.al.
Defendants
ST. ANNE’S IAP CLAIMANTS K-10106
ST. ANNE’S IAP CLAIMANTS H-08199
ST. ANNE’S IAP CLAIMANTS E-10044
Requestors
Proceedings under the Class Proceedings Act, 1992, S.O. 1992 C.6
Michael Swinwood for the Requestors
Catherine A. Coughlan and Brent Thompson for the Attorney General of Canada
PERELL, J.
REASONS FOR DECISION
[1] Evelyn Korkmaz, who has identified herself as an IAP Claimant known as K-10106 brings a recusal motion.
[2] The recusal motion is supported by two affidavits and a factum in which K-10106 submits that I should recuse myself from hearing her Request for Directions (“RFD”) because I am actually biased or there is a reasonable apprehension of bias against: (a) the Independent Assessment Process (“IAP”) claimants of St. Anne’s Indian Residential School in favour of Canada; (b) her personally; and (c) her counsel Fay Brunning, (who it may immediately be noted is not her lawyer for this particular RFD).
[3] However, a reasonable and informed person viewing the matter realistically and practically and having thought the matter through, would not think that it is more likely than not that I consciously or unconsciously would decide the matter of K-10106’s RFD unfairly. There is no merit in K-10106’s recusal motion, which I dismiss with costs if demanded by Canada.
[4] The procedural background to this recusal motion is as follows:
a. On March 6, 2018, three Plaintiffs known as IAP Claimant K-10106 (Evelyn Korkmaz), IAP Claimant H-08199, and IAP Claimant E-10044 commenced an action in the Superior Court of Justice (in Cochrane, Ontario) against Janice Barbara Payne and Nelligan O’Brien Payne LLP and the Attorney General of Canada (“Canada”).
b. The Plaintiffs’ claim against Ms. Payne and Nelligan O’Brien Payne LLP is for professional negligence and breach of fiduciary duty in relation to their retainer to prosecute the Plaintiffs’ IAP claims under the Indian Residential Schools Settlement Agreement (“IRSSA”).
c. The Plaintiffs have joined Canada to the solicitor’s negligence claim to plead a discrete cause of action alleging that Canada is in breach of the IRSSA.
d. The Plaintiffs’ lawyer of record is Michael William Swinwood of Elders Without Borders.
e. The Plaintiffs filed their Statement of Claim on April 5, 2018 and served it on August 20, 2018.
f. The Plaintiffs’ action is being case managed by Justice Gordon in Sudbury, Ontario.
g. On June 3, 2020, Justice Gordon issued an endorsement and directed that the Plaintiffs bring an RFD to be heard by the Eastern Administrative Judge of the IRSSA to determine, among other things, whether the claim against Canada may continue as an action in the Superior Court of Justice in Ontario. It was Justice Gordon’s view that jurisdictionally, actions for breach of the IRSSA were to be administered in accordance with the court orders administering the IRSSA.
h. In June 2020, IAP Claimants K-10106, H-00199, and E-10044 did bring an RFD, but almost a year passed. On April 16, 2021, Mr. Swinwood sent the following email message to Brian Gover, the court’s lawyer under the IRSSA.
I sent this request June 17th, 2020 and most recently. How is it possible that Canada can submit an RFD without service to others and have it considered by an administrative judge in days, and this lies fallow for almost one year? It would be very much appreciated if you could advise me of the status of this RFD. Thank you.
i. On April 21, 2020, Mr. Gover sent an email and advised the parties that a case conference to schedule a hearing of K-10106, H-08199, and E-10044s’ RFD was scheduled for April 30, 2021.
j. On April 28, 2021, K-10106, H-08199, and E-10044s’ filed a recusal motion.
k. In the result, the RFD was not scheduled. A recusal motion was scheduled.
[5] The test for a reasonable apprehension of bias was set out by Justice de Grandpré, in his dissenting judgment in Committee for Justice and Liberty v. National Energy Board,[^43] and the test was approved and adopted by the Supreme Court of Canada in R. v. Valente[^44] and in R. v. S.(R.D.).[^45] The test is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly. The information of this hypothetical observer would include knowledge of the traditions of integrity and impartiality of the judiciary.[^46]
[6] The test for a reasonable apprehension of bias has two elements of objectivity: (1) the measure is that of the reasonable and informed person; and (2) his or her apprehension of bias must be reasonable.[^51]
[7] An allegation of bias or a reasonable apprehension of bias is a serious allegation that calls into question the personal integrity of the judge and the integrity of the entire administration of justice.[^59] The determination of whether there is a reasonable apprehension of bias is an objective, fact-specific inquiry in relation to the facts and circumstances of a particular matter.[^53] The grounds for an apprehension of bias must be substantial,[^60] but each case must be evaluated in its own particular circumstances and in light of the whole proceeding.[^61] The party alleging bias has the onus of proving it and the threshold of proof is a high one.[^63]
[8] I will address Ms. Korkmaz (K-10106)’s most serious allegations of actual and apprehended bias first. The most serious allegation is that I have been biased against the St. Anne’s IAP claimants.
[9] Mr. Kormaz (K-10106)’s allegation of bias is based on long-standing dispute between several IAP claimants, some who are represented Mr. Swinwood and some by Fay Brunning. The central allegation is I have allowed Canada to hide documents that should have been produced to IAP Claimants.
[10] The incorrectness of this allegation and the irony of it is that in this dispute, it was my Orders that required Canada to produce tens of thousands of documents that Canada had failed to disclose. The decisions resulting in those Orders, and some of those in relation to other RFDs brought by St. Anne’s IRS survivors are set out below:
a. In Fontaine v. Canada (Attorney General), 2014 ONSC 283 [St. Anne’s #1], I held that Canada had breached the IRSSA and I ordered Canada to produce thousands of documents. I ordered Canada to produce: (a) the OPP documents about the sexual and physical assaults at St. Anne’s IRS; (b) the transcripts of criminal or civil proceedings in its possession about the sexual and/or physical assaults at St. Anne’s IRS; and (c) any other relevant and non-privileged documents in the possession of Canada to comply with the proper reading and interpretation of Canada’s disclosure obligations under Appendix VIII of the IRSSA. Further, I ordered Canada to revise its Narrative and POI (“Person of Interest”) Reports for St. Anne’s. I ordered $275,000 costs against Canada.[^1]
b. In Fontaine v. Canada (Attorney General), 2014 ONSC 4024 [Kain and Jaffe RFD], I dismissed a request that Ontario produce two expert witness reports prepared for criminal proceedings against a supervisor at St. Anne’s IRS. I did so because the admissibility of medical reports is regulated by the IRSSA and the Court could not amend the IRSSA under the guise of administering the settlement. It was for IAP adjudicators to determine the relevance of materials in the inquisitorial processes of the IAP.
c. In Fontaine v. Canada (Attorney General), 2015 ONSC 4061 [St. Anne’s #2], I made another production order against Canada with respect to St. Anne’s IRS documents. I ordered $78,089.95 in costs against Canada.[^2]
d. In Fontaine v. Canada (Attorney General), 2015 ONSC 3611, which concerned Bishop Horden Indian Residential School and also St. Anne’s IRS, I ordered Canada to conduct additional searches with respect to RCMP documents related to an alleged assault at Bishop Horden IRS. I ordered costs against Canada of $50,000.[^3]
e. In Fontaine v Canada (Attorney General), 2016 ONSC 4328 [RFD H-15019], I adjourned an RFD seeking, among other things, a re-hearing of the requestor’s IAP claim and an order directing how the adjudicator should adjudicate the claim with respect to the admissibility and use of evidence, on the basis that it was premature because the requestor had not completed the review process.
f. In Fontaine v Canada (Attorney General), 2016 ONSC 7913, I granted partial costs immunity to Edmund Metatawabin, IAP Claimant K-10106, and Peetabeck Keway Keykaywin Association (“PKKA”) in relation to a pending jurisdiction motion.
g. In Fontaine v Canada (Attorney General), 2017 ONSC 2487 [Metatawabin #1], I dismissed RFDs brought by IAP Claimant H-15019, Edmund Metatawabin and PKKA without costs. I concluded that H-15019’s RFD should be dismissed because Canada did not breach the IRSSA. I further concluded that Edmund Metatawabin and PKKA lacked standing and that, in any event, the Court lacked jurisdiction to grant the relief that they requested. An appeal to the Court of Appeal was dismissed: Fontaine v. Canada (Attorney General), 2018 ONCA 421[Metatawabin #1 Appeal].
h. In Fontaine v Canada (Attorney General), 2017 ONSC 4275, I dismissed without costs an ex parte request for production of two witnesses’ examination for discovery transcripts. The procedures available under the IAP had not been exhausted and as such, it remained premature for the court to become involved.
i. In Fontaine v. Canada (Attorney General), 2018 ONSC 103, I granted standing to two St. Anne’s IRS survivors, IAP Claimant C-14114 and Angela Shisheesh, but dismissed C-14114’s RFD in its entirety and Ms. Shisheesh’s RFD in part.
j. In Fontaine v. Canada (Attorney General), 2018 ONSC 3957, I dismissed without costs Ms. Shisheesh’s RFD seeking a direction that that she and the other Cochrane plaintiffs may deposit their examination for discovery transcripts with the National Centre for Truth and Reconciliation and for a declaration that those transcripts are not subject to settlement privilege. In doing so, I noted that in Fontaine v. Canada (Attorney General), 2018 ONCA 421, the Court of Appeal held that: (a) the discovery evidence from the Cochrane civil actions that were settled is not part of the IAP; and (b) the transcripts from those civil actions are subject to the deemed undertaking rule. I concluded that there was no need to determine whether the Cochrane examination for discovery transcripts are subject to settlement privilege because it could have no effect on Ms. Shisheesh’s undisputed and undisputable right to deliver her discovery transcripts to the Centre and to tell her own story as she may see fit.
k. In Fontaine v. Canada (Attorney General), 2018 ONSC 6893, I concluded that a St. Anne’s IRS survivor’s request for judicial recourse could not succeed because it did not meet the exceptionality threshold mandated by the Court of Appeal’s decision in Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471 and also because it could not succeed in light of that Court’s decisions in Fontaine v. Canada (Attorney General), 2017 ONCA 26 [Spanish IRS] and Fontaine v. Canada (Attorney General), 2018 ONCA 421[Metatawabin #1 Appeal].
[11] The dispute about the documents has lingered on because several IAP claimants represented by Ms. Brunning have alleged - unsuccessfully - that Canada has not been compliant with my Orders. That I have not found non-compliance by Canada is not evidence of bias or a reasonable apprehension of bias. A reasonable and informed person viewing the matter realistically and practically and having thought the matter through might think I made a mistake in my decisions, but the reasonable and informed person would not think that I was motivated by conscious or unconscious bias. A disgruntled litigant’s unhappiness about an outcome is not evidence of bias. If I made a mistake, then the remedy is an appeal, not a recusal motion in a subsequent RFD.
[12] Next, I will address K-10106’s serious allegations that I am biased against her personally directly and derivatively because K-10106 has been and is being represented by Ms. Brunning in other RFDs. The substance of these allegations has four aspects.
[13] The first aspect of the bias allegation is that from 2015 to 2017, K-10106, who was represented by Ms. Brunning, advanced an RFD. The purpose of her RFD was to obtain what is known as “judicial recourse” of her IAP claim. I dismissed the RFD[^4] and noted that K-10106 had eventually received a substantial IAP. Award. K-10106 appealed. A ground of appeal was my mentioning the amount of her award. My decision was upheld by the Court of Appeal.[^5] K-10106 alleges that I am biased against her because I embarrassed her by revealing that she had received a substantial IAP award. There is no merit to this allegation. She recently revealed her own identity. I did not disclose her identity; she did. The amount of the award was relevant to the issues I had to address.
[14] The second aspect of the allegation that I am biased against K-10106 personally is that because the Divisional Court held that I should have recused myself from the adjudication of a claim for costs against Ms. Brunning personally and because I recused myself from another RFD in which Ms. Brunning is counsel (which is being adjudicated by Justice Glustein), and did not recuse myself in the immediate RFD, there is a reasonable apprehension of bias.
[15] With respect, this allegation of bias is illogical and baseless. Ms. Brunning is not the lawyer of record with respect to this immediate case. The circumstances with respect to the recusals were exceptional and narrow and did not extend to a general disqualification with respect to RFD’s associated with St. Anne’s RFD.
[16] The circumstances with respect to Ms. Brunning do not concern the current RFD, which is in its essence about whether the claim against Canada, which has been joined to a solicitor’s negligence case, will be tried in the normal course or as an aspect of the administration of the IRSSA. In either eventuality, the case against Canada will be tried in the Superior Court of Justice.
[17] A reasonably informed person would be perplexed as to why K-10106’s loyalty to Ms. Brunning from other retainers has anything to do with this RFD, which will decide nothing on its merits and is largely a technical jurisdictional issue. A reasonably informed person would wonder why K-10106 brought the RFD and then waited a year before requesting that I recuse myself.[^6]
[18] The third aspect of the allegation that I am biased against K-10106 personally is that as already mentioned above, I ruled against her by deciding an earlier RFD against her. As mentioned above, the earlier decision was upheld by the Court of Appeal and her disappointment is not a ground for recusal. Moreover, as I explained above, the immediate RFD is one in which nothing substantive will be decided and thus there is little to nothing that could be decided “against” K-10106.
[19] The fourth aspect of the personal bias allegation is that I excluded K-10106’s claim from the independent review of IAP claims for St. Anne’s IRS that I recently authorized.[^7] This is simply untrue. My order clarifies that her claim may be considered as a part of the independent review.[^8]
[20] The Plaintiffs have failed to show that a reasonable person, properly informed of the circumstances would reasonably believe that there is any actual bias or any reasonable apprehension of bias. The Plaintiffs have not overcome the presumptions of impartiality or judicial integrity and they have not met the high threshold required for me to recuse myself.
[21] I dismiss the recusal motion with costs to Canada if demanded.
PERELL J.
Released: June 17, 2021
COURT FILE NO.: 00-CV-192059
DATE: 2021/06/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LARRY PHILIP FONTAINE et.al.
Plaintiffs
- and –
THE ATTORNEY GENERAL OF CANADA, et.al.
Defendants
ST. ANNE’S IAP CLAIMANTS K-10106
ST. ANNE’S IAP CLAIMANTS H-08199
ST. ANNE’S IAP CLAIMANTS E-10044
Requestors
REASONS FOR DECISION
PERELL J.
Released: June 17, 2021
[^43]: 1976 2 (SCC), [1978] 1 S.C.R. 369. [^44]: 1985 25 (SCC), [1985] 2 S.C.R. 673. [^45]: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484. [^46]: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484. [^51]: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369. [^59]: Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 16946 (ON CA), [2000] O.J. No. 4428, 51 (3d) O.R. 97 at para. 131 (C.A), leave to appeal refused [2001] S.C.C.A. No. 66. [^53]: Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47 at para. 230 (C.A), leave to appeal refused [2010] S.C.C.A. No. 91. [^60]: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 76; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at 395. [^61]: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 at paras. 136–41. [^63]: Clayson-Martin v. Martin, 2015 ONCA 596 at paras. 70–71 (C.A); Lloyd v. Bush, 2012 ONCA 349 at para. 23 (C.A); Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805, [2009] O.J. No. 4834 at para. 44 (C.A); R. v. Jackpine, (2004), 2004 28435 (ON CA), 70 O.R. (3d) 97 at para. 58 (C.A); R. v. Perciballi (2001) 2001 13394 (ON CA), 54 O.R. (3d) 346 at paras. 17 and 18 (C.A). [^1]: Fontaine v. Canada (Attorney General) 2014 ONSC 3059 [costs]. [^2]: Fontaine v. Canada (Attorney General), 2015 ONSC 5032 [costs]. [^3]: Fontaine v. Canada (Attorney General), 2015 ONSC 5431 [costs]. [^4]: Fontaine v Canada (Attorney General), 2017 ONSC 2487 [Metatawabin #1]. [^5]: Fontaine v Canada (Attorney General), 2018 ONCA 421 [Metatawabin #1 Appeal]. [^6]: Bias allegations should be raised with reasonable promptness: Avangma v. Charlottetown (City), 2017 PECA 15; Kretschmer v Terrigno, 2012 ABCA 345, leave to appeal to SCC refused [2013] S.C.C.A. No. 27; R. v. McQuaid, 1996 NSCA 254. [^7]: Fontaine v. Canada (Attorney General), 2021 ONSC 2921 [ISA Review]. [^8]: Fontaine v. Canada (Attorney General), 2021 ONSC 2921 [ISA Review], Schedule “B”, para. 15.