ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-CV-192059

DATE: 2021/12/20

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-00199

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

Brent Thompson for the Attorney General of Canada

PERELL, J.

REASONS FOR DECISION

Contents

A. Introduction. 2

B. Overview.. 2

C. Procedural Background. 5

D. Factual Background. 6

1. Introduction. 6

2. St. Anne’s Indian Residential School 6

3. The Indian Residential Schools Settlement Agreement 7

4. The Independent Assessment Process (“IAP”) 8

5. Canada’s Document Disclosure Obligations for the IAP. 9

6. The IRRSA Release. 10

7. The Approval and the Administrative Structure of the IRSSA.. 11

8. Ms. Korkmaz’s IAP Claim.. 12

9. H-00199 and E-10044’s IAP Claims. 12

10. Fontaine v. Canada (Attorney General), [St. Anne’s #1] and Fontaine v. Canada (Attorney General), [St. Anne’s #2] and the Re-opening of IAP Claims. 13

11. H-15019’s IAP Claim and H-15019’s 2018 Civil Action. 14

12. The Korkmaz, Metatawabin, and PKKA RFD.. 15

13. The Shisheesh and C-14114 RFD.. 16

14. H-15019 v. Wallbridge and Canada. 16

15. Korkmaz et al v. Nelligan and Canada. 18

16. The Sunset of the IAP. 19

17. The Independent Review of St. Anne’s Claims. 19

E. Discussion and Analysis. 20

F. Conclusion. 21

A. Introduction

[1] Pursuant to the Indian Residential School Settlement Agreement (“IRSSA”), H-00199, E-10044, and Evelyn Korkmaz, who has identified herself as IAP (“Independent Assessment Process”) claimant K-10106 bring an RFD (Request for Directions).

[2] The Requestors (Ms. Korkmaz, H-00199 and E-10044) seek a direction that their 2018 Civil Action against the Attorney General of Canada (“Canada”) and against Janice Barbara Payne and Nelligan O’Brien Payne LLP (collectively “Nelligan”) be permitted to continue as an action in the Superior Court of Justice in Cochrane, Ontario.

[3] For the reasons that follow, the motion is granted with costs in the cause of the 2018 Civil Action.

B. Overview

[4] Ms. Korkmaz, H-00199, and E-10044 were students at St. Anne’s Indian Residential School in Fort Albany, Ontario (“St. Anne’s”). The school was operated by Canada, the Moosonee Diocese, the Oblates of Mary Immaculate, and the Grey Sisters of the Immaculate Conception.

[5] Ms. Korkmaz, H-00199, and E-10044 were victims and survivors of the atrocities that occurred at St. Anne’s.

[6] Ms. Korkmaz, H-00199, and E-10044 were Class Members in institutional abuse class actions across the country against Canada and the church organizations that operated the Indian Residential Schools (“IRS”), including St. Anne’s. The class action in Ontario was brought pursuant to the Class Proceedings Act, 1992.[^1]

[7] The Ontario class action, the class actions across the country, and numerous individual claims against Canada and the church entities settled pursuant to court-approved settlements. The omnibus settlement is known as the Indian Residential School Settlement Agreement (“IRRSA”).

[8] Under the IRRSA, in exchange for monetary compensation and non-monetary relief, Ms. Korkmaz, H-00199, and E-10044 released claims they had against Canada and the church organizations that operated the schools. The monetary compensation was comprised of Common Experience Payments (“CEP”, for having attended the schools) and recourse to the Independent Assessment Process (“IAP”, for abuse suffered at the schools), an inquisitorial claims process adjudicated by Adjudicators supervised by a Chief Adjudicator.

[9] In their practical effect, the releases re-directed Class Members, like Ms. Korkmaz, H-00199, and E-10044, to resort to the CEP and the IAP as the recourse for their compensatory claims against Canada and the church entities that operated St. Anne’s.

[10] Represented by Nelligan, Ms. Korkmaz, H-00199, and E-10044 prosecuted IAP claims against Canada and the Catholic church organizations that operated St. Anne’s. In the IAP, Ms. Korkmaz received compensation of $175,000, H-00199 received compensation of $157,000, and E-10044 received compensation of $102,347. Each of these awards exceeded the average award under the IAP, which was $91,466 from 2007 to 2020.

[11] Ms. Korkmaz, H-00199, and E-10044 allege, however, that during the prosecution of their respective IAP claims, they were not advised that Nelligan had previously acted for the church organizations that were the defendants in the class actions and in the individual actions brought against Canada and the Catholic Church organizations that operated St. Anne’s.

[12] Ms. Korkmaz, H-00199, and E-10044 allege that Nelligan had a conflict of interest and breached its professional responsibilities. After pursuing their claims in the IAP, in 2018, Ms. Korkmaz, H-00199, and E-10044 commenced a civil action in Cochrane, Ontario in the Superior Court of Justice (the “2018 Civil Action”). In the 2018 Civil Action, they sued Nelligan for professional negligence and breach of fiduciary duty with respect to the IAP claims. Nelligan denies any breaches of duty owed to the IAP claimants.

[13] In the 2018 Civil Action, Ms. Korkmaz, H-00199, and E-10044 joined Canada as a co-defendant. It is alleged that Canada breached its obligation under the IRSSA to disclose documents to the IAP Adjudicators. In particular, it is alleged that Canada - and Nelligan - failed to disclose documents acquired by the Ontario Provincial Police (“OPP”) in a 1990s’ investigation of the crimes that had occurred at St. Anne’s.

[14] The 2018 Civil Action brought Ms. Korkmaz, H-00199, and E-10044 - and a similar 2018 Civil Action brought by H-15019 against Canada and H-15019’s lawyers, Wallbridge, Wallbridge (“Wallbridge”) – were assigned to be case managed by Justice Gordon. H-15019’s 2018 Action is similar because it raises the identical issues against the defendants as raised by Ms. Korkmaz, H-00199, and E-10044.

[15] In the 2018 Civil Action, Justice Gordon directed that Ms. Korkmaz, H-00199, and E-10044 bring an RFD to be heard by the Ontario Supervising Judge for the purposes of the IRSSA to determine whether the claims against Canada may continue as an action in the Superior Court of Justice in Ontario or whether they were to be administered pursuant to the IRSSA. I am the Ontario Supervising Judge (a judge of one of the nine provincial and territorial superior courts that approved and are tasked with the IRSSA’s ongoing but almost completed administration), and one of two Administrative Judges who have overall responsibility for the IRSSA’s administration.

[16] The Requestors brought the RFD now before me, and in the RFD, Ms. Korkmaz, H-00199, and E-10044 submit that the 2018 Civil Action should proceed before Justice Gordon and not be administered pursuant to the IRSSA. Canada, however, submitted that jurisdictionally, Canada could not be sued in the 2018 Civil Action because the claims against Canada were exclusively governed and had been resolved by the IAP and that, in any event, Ms. Korkmaz, H-00199, and E-10044, who had made substantial recoveries in the IAP, had no provable claim for damages.

[17] For the more detailed reasons set out below, I conclude that Ms. Korkmaz’s, H-00199’s, and E-10044’s 2018 Action - and also H-15019’s 2018 Action – must continue before Justice Gordon.

[18] By way of a summary of my reasons:

a. The IRSSA was the settlement of a class action in the Superior Court of Justice. The IRSSA did not oust the jurisdiction of Ontario’s Superior Court of Justice.

b. Rather, the IRSSA was a manifestation of the Superior Court’s class action jurisdiction. The IRSSA could not and did not oust the jurisdiction of the Superior Court of Justice to adjudicate: (a) Ms. Korkmaz’s, H-00199’s, and E-10044’s professional negligence claims against Nelligan; (b) Ms. Korkmaz’s, H-00199’s, and E-10044’s claim against Canada for breach of the contract that is the IRSSA; (c) H-15019’s professional negligence claim against Wallbridge; and (d) H-15019’s claim against Canada for breach of the contract that is the IRSSA.

c. Therefore, the 2018 Civil Action should proceed as a normal action in the Superior Court of Justice.

d. In the 2018 Civil Actions, Canada may have defences that: (1) the actions are barred or discharged by the IRSSA release; (2) the actions are barred as res judicata or by issue estoppel; (3) professional negligence or a breach of the IRSSA was not proven; (4) the breaches did not cause damages; or (5) damages were not proven from the alleged breaches. These substantive defences are all matters to be decided in the 2018 Actions.

[19] In short, there is no jurisdictional impediment to the 2018 Civil Actions proceeding for a determination of the merits of the claims and the defences. The merits of the claims and of the defence are not matters to be determined by an RFD in the administration of the IRSSA. Accordingly, Ms. Korkmaz’s, H-00199’s, and E-10044’s RFD is granted, and the 2018 Civil Actions should be remitted to Justice Gordon.

C. Procedural Background

[20] The procedural background to this RFD is as follows.

[21] On March 6, 2018, three plaintiffs known as IAP Claimant K-10106 (Evelyn Korkmaz), IAP Claimant H-00199, and IAP Claimant E-10044 commenced an action in the Superior Court of Justice against Janice Barbara Payne and Nelligan and the Attorney General of Canada (“Canada”).

[22] Ms. Korkmaz’s, H-00199’s, and E-10044’s claims in the 2018 Civil Action against Nelligan are for professional negligence and breach of fiduciary duty in relation to their retainer to prosecute their IAP claims under the IRSSA.

[23] Ms. Korkmaz, H-00199, and E-10044 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.

[24] Ms. Korkmaz, H-00199, and E-10044 filed their statement of claim on April 5, 2018 and served it on August 20, 2018.

[25] The 2018 Civil Action is being case managed by Justice Gordon.

[26] On June 3, 2020, Justice Gordon issued an endorsement and directed that Ms. Korkmaz, H-00199, and E-10044 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 actions for breach of the IRSSA were to be administered in accordance with the court orders administering the IRSSA.

[27] In June 2020, K-10106, H-00199, and E-10044 did bring an RFD, but almost a year passed until they requested that their RFD move forward.

[28] On April 21, 2021, Mr. Gover, the court’s lawyer under the IRSSA sent an email and advised the parties that a case conference to schedule a hearing of Ms. Korkmaz’s, H-00199’s, and E-10044’s RFD was scheduled for April 30, 2021.

[29] On April 28, 2021, K-10106, H-00199, and E-10044 delivered a recusal motion.

[30] In the result, the RFD was not scheduled. A recusal motion was scheduled.

[31] On June 17, 2021, I dismissed the recusal motion,[^2] and the RFD resumed.

[32] I scheduled the RFD to be heard in writing, and I set a timetable for the delivery of material and the exchange of factums, which exchange was completed on schedule.

[33] Ms. Korkmaz’s H-00199’s, and E-10044’s material consisted of the affidavits of Ms. Korkmaz, dated March 31, 2016, May 12, 2020, and June 16, 2020. Canada filed no material. There were no cross-examinations.

[34] The parties delivered factums and the motion was heard in writing.

D. Factual Background

1. Introduction

[35] Although the eventual legal analysis will be concise and precise, the factual background to this RFD is enormously large because it involves: (a) the history of the Indian Residential Schools; (b) the history of the events that led to the individual actions and class actions across the country about what had occurred at the schools; (c) the history of St. Anne’s in particular; (d) the history of a 1992-1996 OPP criminal investigation and criminal proceedings involving the staff at St. Anne’s; (e) the history of litigation claims made by the survivors of the brutalities at St. Anne’s before the IRSSA was signed; (f) the approval and the administration of the IRSSA; (g) the operation of the IAP process under the IRSSA; (h) numerous RFDs involving the administration of the IRSSA; (i) in particular, RFDs involving the production of documents from an OPP investigation; (j) the litigation histories of Ms. Korkmaz’s H-00199’s, and E-10044’s IAP claims; (k) the litigation history of H-15019’s IAP claim; (l) Ms. Korkmaz’s H-00199’s, and E-10044’s 2018 Civil Action against Nelligan and Canada; (m) H-15019’s 2018 Action against Wallbridge and Canada; (n) the history of the administration of the IRSSA and the role of the courts; and (o) a recent inquiry and report made by a Special Independent Advisor to the courts about the production of the OPP documents in the prosecution of IAP claims involving St. Anne’s survivors.

2. St. Anne’s Indian Residential School

[36] Between the 1860s and 1990s more than 150,000 First Nations, Inuit, and Métis children were compelled by the Canada to attend Indian Residential Schools (“IRS”), institutions operated by religious organizations under the funding of Canada.

[37] The children who attended the Indian Residential Schools were the victims of brutal mistreatment.

[38] St. Anne’s was located in Fort Albany, Ontario, near the mouth of the Albany River at James Bay. St. Anne’s operated from 1902 to 1970 within a Roman Catholic mission of three Catholic religious and charitable organizations (the Moosonee Diocese, Oblates of Mary Immaculate, and Grey Sisters of the Immaculate Conception. The Residential School Program began in 1904. From 1970 to 1976, St. Anne’s was operated by the federal government directly (rather than by a religious order on behalf of Canada). It closed in 1976.

[39] St. Anne’s was the site of some of the most egregious incidents of abuse within the Indian Residential School system. Ms. Korkmaz, H-00199, and E-10044 were students at the school. They were the victims of brutal mistreatment.

[40] The process for justice for the children who were abused at St. Anne's started with the 1992 Keykaywin Conference, which sought to bring the abuse to light. The Conference triggered an investigation by the OPP.

[41] The OPP began its investigation in 1992 and completed it in 1996. The OPP obtained 992 signed statements from about 700-750 people. In 1997, the OPP laid charges against seven former employees of St. Anne’s. All but one were convicted.

[42] Over the course of its investigation, the OPP obtained and created a voluminous collection of documents regarding St. Anne’s and the abuses that took place there. The records include statements of former residential school students, and over 7,000 documents seized from church organizations.

[43] In 2000, 154 St. Anne’s students all represented by Wallbridge, filed civil claims in connection with the students’ mistreatment at St. Anne’s. One of the lead plaintiffs was Angela Shisheesh, of which more will be said below. The actions were defended by Canada and the Catholic Church entities. None of these claims ever proceeded to trial.

[44] Following the launch of other individual and class actions across the country by former students of Indian Residential Schools, in November 2003, Canada established a National Resolutions Framework, which included a compensation process called the Alternative Dispute Resolution (“ADR”) Process. The ADR Process was the predecessor or the model for the IAP in the IRSSA.

[45] Meanwhile in 2003, in the civil proceedings by the 154 St. Anne’s students, Justice Trainer granted court access to the OPP investigation documents to: Wallbridge, the lawyers for Canada, and the lawyers for the Catholic Church entities, who had retained Nelligan in defence of the claims brought by the 154 St. Anne’s students.

[46] After the launch of the numerous court proceedings, there were extensive negotiations to settle the individual actions and the class actions across the country.

[47] In November 2004, the Assembly of First Nations (“AFN”) published a report entitled, Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools. In this report, it was stressed that compensation, alone, would not achieve the goals of reconciliation and healing. A two-pronged approach would be required: (1) compensation; and (2) truth-telling, healing, and public education.

[48] Meanwhile, in the civil action by the 154 students, examinations for discovery were conducted, and all the civil actions settled by 2005. Angela Shisheesh’s civil action against Canada and the church entities that operated St. Anne’s settled.

3. The Indian Residential Schools Settlement Agreement

[49] In May 2005, a political agreement was signed between Canada and AFN that a settlement would be negotiated for the outstanding class actions and individual actions. The settlement would include compensation, healing, and a truth and reconciliation process.

[50] In 2005, the AFN became a plaintiff by launching a class action against Canada, and Mr. Fontaine, a former National Chief was named as proposed Representative Plaintiff. The style of cause of the class actions across the country eventually became Fontaine v. Canada (Attorney General).

[51] The IRSSA was signed on May 8, 2006. Nelligan was a signatory for some of the defendant church organizations.

[52] In Baxter v. Canada (Attorney General)[^3], (the style of the Ontario class action before the style of cause was amended), at para. 7, Justice Winkler described the compensatory elements and the other benefits of the IRSSA as follows:

7. Under the proposed settlement, all members of the Survivor class will receive a cash payment, with the amount varying according to the length of time each individual spent as a student in the residential schools system. This class-wide compensatory payment, which is referred to as the Common Experience Payment ("CEP"), is one of five key elements of the settlement before the court. In addition, there is an Independent Assessment Process ("IAP"), which will facilitate the expedited resolution of claims for serious physical abuse, sexual assaults and other abuse resulting in serious psychological injury. The foregoing elements are aimed at personal compensation for the students who attended the schools. The other three elements of the settlement are designed to provide more general, indirect benefits to the former students and their families. These elements are the establishment of a Truth and Reconciliation Commission, with a mandate to make a public and permanent record of the legacy of the schools, in conjunction with the earmarking of a significant portion of the settlement fund for healing and commemoration programs.

[53] The IRSSA prescribes two forms of compensation. The first is the Common Experience Payment (“CEP”), which is available pursuant to Article 5 of the Agreement to all eligible former students who resided at IRSs. Eligible recipients received $10,000 for at least part of a school year, and $3,000 for each subsequent year or part year.

[54] The second type of compensation is a product of the Independent Assessment Process (“the IAP”), which pursuant to Article 6 of the IRSSA allows Claimants to seek compensation from a panel of adjudicators lead by the Chief Adjudicator. The IAP was administered by the Indian Residential Schools Adjudication Secretariat under the supervision of the Chief Adjudicator.

[55] As will be explained further below, in exchange for the compensation and non-compensatory elements of the IRSSA, aspects of the Class Members’ claims against Canada and the other defendants were expressly released by the IRSSA. In their practical effect, the releases re-directed Class Members, like Ms. Korkmaz, H-00199, E-10044, and H-15019’s to resort to the CEP and the IAP as the recourse for their compensatory claims against Canada and the church entities that operated St. Anne’s.

4. The Independent Assessment Process (“IAP”)

[56] The IAP was an inquisitorial system. Adjudicators determined the appropriate level of compensation, if any, to be awarded. The IAP provides for compensation to a maximum of $275,000 plus actual income loss, if proved, of another $250,000.

[57] A dissatisfied IAP claimant could appeal to the Chief Adjudicator or his designate for a Review hearing and then a Re-review hearing. There was no right of appeal to the courts from an IAP hearing decision, although case law developed for what came to be described as “judicial recourse”, which allows a limited scope of judicial review of IAP claims.

[58] The procedure for the IAP is set out in Schedule D of the IRSSA. In Fontaine v. Canada (Attorney General),[^4] Justice Brown of the British Columbia Supreme Court described the IAP as follows:

29. The purpose of the IAP is to provide a modified adjudicative proceeding for the resolution of claims of serious physical or sexual abuse suffered while at a residential school. The hearings are to be inquisitorial in nature and the process is designed to minimize further harm to claimants. The adjudicator presiding over the hearing is charged with asking questions to elicit the testimony of claimants. Counsel for the parties may suggest questions or areas to explore to the adjudicator but they do not question claimants directly.

30. The hearings are meant to be considerate of the claimant's comfort and well-being but they also serve an adjudicative purpose where evidence and credibility are tested to ensure that legitimate claims are compensated and false claims are weeded out. It is strongly recommended that claimants retain legal counsel to advance their claims within the IAP.

[59] The parties to an IAP hearing were the Claimant, Canada, and any Church entity affiliated with the particular IRS where the assault occurred. The parties were permitted to have counsel. The IAP hearing served two purposes: testing the credibility of the claimant, and assessing the harm suffered by him or her.[^5]

[60] To receive compensation in the IAP, the onus was on the Claimant to prove on a balance of probabilities the alleged compensable abuse, any loss of opportunity, aggravating factors, and the need for future care. For standard track claims, such as physical abuse, once compensable abuse and harms were proven on a balance of probabilities, the Claimant also had to establish a “plausible link” between the abuse and the harms. A plausible link was the surrogate for proof of causation. In the complex track, “the standard for proof of causation and the assessment of compensation within the Compensation Rules was the standard applied by the courts in like matters. In order to advance a claim for serious physical abuse by a former IRS employee, a Claimant was required to provide credible and reliable evidence that the alleged assault met the “PL” threshold.

[61] The IRSSA provided compensation not only for assaults and sexual assaults perpetrated by the staff of the defendant church organizations, but it also provided compensation for assaults and sexual assaults perpetrated by students on other students (“SOS” IAP claims). With regard to claims of one student being abused by another, the Claimant bears the onus of proving that:

an adult employee of the government or church entity which operated the IRS in question had or should reasonably have had knowledge that abuse of the kind alleged was occurring at the IRS in question during the time period of the alleged abuse, and did not take reasonable steps to prevent such abuse. If the Claimant establishes that he or she was abused in a manner covered by Schedule “D” of the IRSSA, the adjudicator then determines whether the Claimant suffered consequential harm as a result. There are five gradations of consequential harm provided for in Schedule “D”. […]

5. Canada’s Document Disclosure Obligations for the IAP

[62] Canada’s document disclosure obligations under the IRSSA with respect to the IAP are set out in Schedule D, Appendix VIII “Government Document Disclosure.”

[63] Canada had detailed disclosure obligations with respect to providing information about: IAP Claimants, the IRS attended by the Claimant; documents mentioning sexual abuse at the school; and alleged perpetrators of assaults (“Persons of Interest” or “POIs”).

[64] Under Appendix VIII, in addition to preparing POI reports, Canada must gather documents about the residential school the Claimant attended and write a report summarizing those documents, i.e., Canada must prepare a narrative for each school (the “Narrative”). This is a continuing obligation as documents are found that mention sexual abuse by individuals other than those named in an application.

[65] Canada was required to search for and report the dates that the Claimant attended an IRS. Canada must also search for documents relating to the alleged perpetrators named in the Application Form, and was required to provide the Secretariat with the following documents: (a) documents confirming the Claimant’s attendance at the school(s); (b) documents about the person(s) named as abusers, including those persons’ jobs at the IRS, the dates they worked or were there, and any sexual or physical abuse allegations concerning them; (c) a report about the IRS(s) in question and the background documents; and (d) any documents mentioning sexual abuse at the IRSs) in question.

[66] Under the IRSSA, Adjudicators, Claimants and their counsel were provided with Canada’s document collection for each IRS named on a given IAP claim, and an Adjudicator may use this disclosure as a basis for a finding of fact or credibility.

6. The IRRSA Release

[67] Under the IRSSA, Canada and the other Defendants obtained releases. The IRSSA provides at Article 4.06 (g) as follows:

[...] that the obligations assumed by the defendants under this Agreement are in full and final satisfaction of all claims arising from or in relation to an Indian Residential School or the operation of Indian Residential Schools of the Class Members and that the Approval Orders are the sole recourse on account of any and all claims referred to therein.

[68] The specification of those who were to be released was defined very broadly. “Releasee” was defined as follows:

“Releasees” means, jointly and severally, individually and collectively, the defendants in the Class Actions and the defendants in the Cloud Class Action and each of their respective past and present parents, subsidiaries and related or affiliated entities and their respective employees, agents, officers, directors, shareholders, partners, principals, members, attorneys, insurers, subrogees, representatives, executors, administrators, predecessors, successors, heirs, transferees and assigns the definition and also the entities listed in Schedules “B”, “C”, “G” and “H” of this Agreement.

[69] The ambit of the release was also very broad. Article Eleven of the IRSSA stated as follows:

ARTICLE ELEVEN - RELEASES

11.01 Class Member and Cloud Class Member Releases

(1) The Approval Orders will declare that in the case of Class Members and Cloud Class Members:

(a) Each Class Member and Cloud Class Member has fully, finally and forever released each of the Releasees from any and all actions, causes of action, common law, Quebec civil law and statutory liabilities, contracts, claims and demands of every nature or kind available, asserted or which could have been asserted whether known or unknown including damages, contribution, indemnity, costs, expenses and interest which any such Class Member or Cloud Class Member ever had, now has, or may hereafter have, directly or indirectly arising from or in any way relating to or by way of any subrogated or assigned right or otherwise in relation to an Indian Residential School or the operation of Indian Residential Schools and this release includes any such claim made or that could have been made in any proceeding including the Class Actions or the Cloud Class Action whether asserted directly by the Class Member or Cloud Class Member or by any other person, group or legal entity on behalf of or as representative for the Class Member or Cloud Class Member.

(b) …

(c) Canada’s, the Church Organizations’ and the Other Released Church Organizations’ obligations and liabilities under this Agreement constitute the consideration for the releases and other matters referred to in Section 11.01(a) and (b) inclusive and such consideration is in full and final settlement and satisfaction of any and all claims referred to therein and the Class Members or and Cloud Class Members are limited to the benefits provided and compensation payable pursuant to this Agreement, in whole or in part, as their only recourse on account of any and all such actions, causes of actions, liabilities, claims and demands.

[70] In their practical effect, the releases re-directed plaintiffs and Class Members in actions against Canada and others to resort to the CEP and IAP as the recourse for their compensatory claims and it directed the survivors to the Truth and Reconciliation Committee and National Centre for Truth and Reconciliation for their collective claims and grievances which would be memorialized in the historical account of their experiences at the residential schools.

7. The Approval and the Administrative Structure of the IRSSA

[71] Between December 2006 and January 2007, the superior courts of nine provinces or territories issues judgments certifying the class actions and approving the terms of settlement as being fair, reasonable, and in the best interests of the Class Members. Justice Winkler as he then was, certified the action in Ontario in Baxter v. Canada (Attorney General).[^6]

[72] The approval judgments incorporate by reference all the terms of the IRSSA, and the judgments provide that the applicable class proceedings laws shall apply in their entirety to the supervision, operation, and implementation of the IRSSA.

[73] On March 8, 2007, the nine superior courts made Implementation Orders that provided for ongoing supervision by the courts of the IRSSA. Under the Approval Orders, the courts are authorized “to issue such orders as are necessary to implement and enforce the provisions of the Agreement and this [approval] judgment.” The court exercises its supervisory and enforcement authority through an RFD (Request for Direction) procedure. An RFD was not an alternative to a civil action; it was a specialized procedure for asking the court to exercise supervisory jurisdiction over the IRSSA.[^7]

[74] The “Court Administration Protocol” was established to provide the framework for ongoing court supervision of the IRSSA. Under the Protocol, there are two Administrative Judges, whose primary role is to receive and evaluate RFDs in relation to the administration of the IRSSA. The Administrative Judges determine whether a hearing is necessary, and if so, in which jurisdiction, in accordance with guidelines set out in the Court Administration Protocol.

[75] The court has an ongoing obligation to oversee the implementation of a settlement agreement and to ensure that the interests of the class members are protected. Where there are vulnerable claimants, the court's supervisory jurisdiction will permit the court to fashion such terms as are necessary to protect the interests of that group.[^8] The supervisory jurisdiction of the court is to be exercised to ensure that claimants obtain the intended benefits of the IRSSA and to ensure that the integrity of the implementation and administration of the agreement and related processes are maintained.[^9]

[76] The court has administrative jurisdiction over a class action settlement independent of any conferral of jurisdiction by the settlement agreement.[^10]

8. Ms. Korkmaz’s IAP Claim

[77] On February 15, 2011, there was a hearing of Ms. Korkmaz’s IAP claim which was a student-on-student claim for compensation of having been raped by male students at St. Anne’s.

[78] At the IAP hearing, Ms. Korkmaz was represented by Nelligan.

[79] Ms. Korkmaz’s IAP claim was dismissed.

[80] In 2012, a Review Adjudicator granted Ms. Korkmaz’s claim.

[81] In 2012, Ms. Korkmaz received an IAP award of $175,000.

[82] As the discussion below will reveal, Ms. Korkmaz became active as an advocate for other IAP claimants with decided claims.

9. H-00199 and E-10044’s IAP Claims

[83] H-00199 and E-10044 are both survivors of St. Anne’s.

[84] Plaintiffs E-10044 and H-00199 resolved their IAP claims through the short-form decision process. This means that that they and Canada agreed to resolve the matter by accepting the credibility and compensability of the claimant’s allegations.

[85] On October 10, 2013 H-00199 received an IAP award of $157,000. H-00199 received compensation for the highest category of abuse alleged in H-00199’s IAP application.

[86] On July 28, 2015, E-10044 received an IAP award of $102,347.

[87] E-10044 and H-00199 did not seek a Review or Re-review of their IAP hearing decisions.

10. Fontaine v. Canada (Attorney General), [St. Anne’s #1] and Fontaine v. Canada (Attorney General), [St. Anne’s #2] and the Re-opening of IAP Claims

[88] On January 14, 2014, in Fontaine v. Canada (Attorney General), [St. Anne’s #1][^11] I concluded that based on its unduly narrow interpretation of its obligations, Canada has not adequately complied with its disclosure obligations with respect to the St. Anne’s Narrative and with respect to the POI Reports for St. Anne’s.

[89] In St. Anne’s #1, I ordered Canada to produce: (a) the OPP documents in its possession; (b) the transcripts from the civil actions in Cochrane concerning incidents of abuse at St. Anne’s; and (c) such other documents that do comply with the proper reading and interpretation of Canada’s disclosure obligations under Appendix VIII to those preparing the Narratives and the POI Reports.

[90] In St. Anne’s #1, I also concluded that the court has the jurisdiction to re-open a settled IAP claim but whether a claim should be re-opened will depend upon the circumstances of each particular case. At paragraph 228 of my Reasons for Decision, I stated:

228. This is also not to say that any breach of Canada’s disclosure obligations will necessarily lead to a re-opening of a settled claim. Each case will have to be decided on its own merits and a variety of factors may have to be considered in any given case including some demonstration that the prejudice from non-disclosure was more than a theoretical miscarriage of justice. The court’s jurisdiction to re-open a claim will be a rare or extraordinary jurisdiction.

[91] The re-opening test that I articulated in St. Anne’s #1, namely that an IAP Claimant must show on a case-by-case basis whether there has been more than a theoretical miscarriage of justice was approved by the Court of Appeal for Ontario in 2018.[^12] In 2018, this re-opening test was adopted by the British Columbia Court of Appeal.[^13] In 2019, in the Supreme Court of Canada, in J.W. v Canada (Attorney General),[^14] Justice Côté, writing for herself and Justice Moldaver, cited this re-opening test with approval.

[92] In June 2015, I decided Fontaine v. Canada (Attorney General), [St. Anne’s #2],[^15] another RFD with respect to documentary disclosure for the St. Anne’s IAP claimants. I held that Canada’s Narratives and the POI Reports still did not comply with the requirements of the IRSSA.

[93] In St. Anne’s #2, I ordered Canada to revise the Narratives and POI Reports and to provide the Indian Residential School Adjudication Secretariat un-redacted copies of any court records, including transcripts and pleadings that were at any time publicly available and, upon request, to claimants or their lawyers for IAP hearings about St. Anne' s.

[94] After St. Anne’s #2 Canada delivered more documents to the Secretariat administering the IAP. The documents became available for the lawyers acting for the IAP claimants.

11. H-15019’s IAP Claim and H-15019’s 2018 Civil Action

[95] H-15019 was a survivor of St. Anne’s.

[96] In 2011, H-15019 made an IAP application. H-15019 was represented by Wallbridge.

[97] H-15019’s IAP claim was heard in May 2013 with final submissions in July 2014.

[98] On July 25, 2014. H-15019’s IAP hearing went forward without the benefit of the documents that had recently been produced by Canada as a result of St. Anne’s #1.

[99] On September 23, 2014, H-15019’s IAP claim was dismissed.

[100] H-15019 applied for a Review of the Adjudicator’s decision. However, the Review Adjudicator dismissed the Review.

[101] H-15019 believed that the outcome of this IAP claim would have been different if proper disclosure of information including the OPP documents had been made by Canada and by Wallbridge LLP.

[102] In 2015, H-15019 petitioned the Mushkegowuk Council for assistance, and on October 22, 2015, the Council passed a Resolution calling for, among other things, a review of all St. Anne's IAP claims for possible prejudice because of the failure to disclose the OPP documents and transcripts of discovery from the Cochrane civil claims.

[103] Meanwhile H-15019 did not request a Re-Review. Rather, backed by the Mushkegowuk Council, H-15019 brought an RFD. I, however, adjourned the RFD as premature, to be brought on, if necessary, after a Re-Review of H-15019’s IAP decision.[^16]

[104] On July 2016, there was a Re-Review Hearing of Claimant H-15019’s IAP claim heard by Chief Adjudicator Daniel Shapiro, who reserved judgment, and in January 2017, the Chief Adjudicator ordered a new hearing of H-15019’s IAP claim.

[105] H-15019, however, rather than proceeding to the new IAP adjudication, sought to bring back on his adjourned RFD. He wished guidance from the court on the procedural details of the new IAP hearing, and he raised again the issue of whether there had been compliance with my Order in St. Anne’s #1.

[106] On February 7, 2017, there was a case conference to determine whether H-15019’s RFD should proceed. At the case conference, Canada confirmed that it had examination for discovery transcripts from the settled civil proceedings by the 154 St. Anne’s students. Canada said that it had not produced the transcripts because of settlement privilege or because of the deemed undertaking rule. This position by Canada was no secret because Canada had made its position known when it delivered documents after St. Anne’s #2 in 2015.

[107] At the case conference for H-15019’s RFD, I directed that there should be a hearing in writing to determine whether Canada had indeed breached its disclosure obligations under the IRSSA with respect to the transcripts. I ordered that there should be a preliminary motion to determine whether there had been a breach by Canada insofar as it failed to produce the examination for discovery transcripts.[^17] If there was a breach, then the court could consider in a subsequent hearing whether H-15019’s various extraordinary requests for relief should be granted and directions given with respect to H-15019’s IAP hearing.

[108] In 2017, on the preliminary motion of H-15019’s RFD, I concluded that Canada had not breached its disclosure obligations under St. Anne’s #1 by refusing to produce transcripts for discovery.[^18] That decision was affirmed by the Ontario Court of Appeal.[^19]

[109] H-15019 proceeded with the hearing of the IAP claim, and on July 18, 2017, H-15019 received an award of $183,556.

[110] In 2018, H-15019 commenced an action against P. James Wallbridge, Lindsay McNicoll, Wallbridge, Wallbridge and Canada with respect to the prosecution of IAP claim and the alleged failure to produce documents for the adjudication of the IAP claim. H-15019’s 2018, which parallels, Ms. Korkmaz’s, H-00199’s and E-10044’s 2018 Action is discussed further below.

12. The Korkmaz, Metatawabin, and PKKA RFD

[111] At the same time as I dismissed H-15019’s RFD alleging breach of St. Anne’s #1, I considered an RFD brought by Ms. Korkmaz, Chief Edmond Metatawabin, another survivor of St. Anne’s, and the Peetabeck Keway Keykaywin Association (“PKKA”). The PKKA was an advocacy group for St. Anne’s students, and Chief Metatawabin for decades has been a leader in seeking justice for the survivors of the school, although he himself was not an IAP claimant.

[112] Ms. Korkmaz, Chief Metatawabin, and PKKA were seeking an order re-opening all the IAP claims because of Canada’s alleged breach of the St. Anne’s #1. They alleged that Canada had breached the IRSSA and that Nelligan, Wallbridge LLP, and the lawyers for the Department of Justice acting for Canada breached professional duties, fiduciary duties, and duties of care owed the IAP claimants.

[113] Ms. Korkmaz, Chief Metatawabin, and PKKA sought extensive remedies, including a judicial investigation and an order extending the IAP deadline for former students of St. Anne’s who did not file an IAP claim. They sought an order reopening all St. Anne’s IAP claims.

[114] I dismissed the Korkmaz, Metatawabin, and PKKA RFD. I concluded that the Requestors did not have standing and that, in any event, the court does not have the jurisdiction to grant the relief that they requested.[^20] With respect to Ms. Korkmaz, I stated in para. 194 of my decision as follows:

194. As for Claimant K-10106’s complaints about the IAP, she has already had her IAP hearing, and there is no reason to believe that the outcome of the IAP process was unjust or that the extraordinary circumstances for court intervention exist. What can be said is that at Claimant K-10106’s hearing, some documents from an enormous universe or database of possibly relevant documents were not put before the Adjudicator, which is a common phenomenon in any type of litigation, but there is no basis to believe that the absence of the Cochrane documents affected the outcome of the IAP process. Claimant K-10106 was successful, and she received a substantial award within the parameters of the IAP.

[115] Mr. decision in the Korkmaz, Metatawabin, and PKKA RFD was affirmed by the Ontario Court of Appeal.[^21]

13. The Shisheesh and C-14114 RFD

[116] As noted above, Angela Shisheesh is a former St Anne’s student. She was one of the plaintiffs in the Cochrane actions that were settled before the signing and approval of the IRSSA. As noted above the law firm acting for Ms. Shisheesh was Wallbridge & Wallbridge.

[117] In 2018, Ms. Shisheesh and IAP Claimant C-14114 brought an RFD for the enforcement of the IRSSA and the re-opening of the IAP claims based on the allegation that Canada had breached its disclosure obligations with respect to the OPP documents and because of the breaches of the duties owed by the lawyers acting for the IAP claimants.

[118] I dismissed C-14114’s RFD on the grounds of prematurity, want of standing, and want of jurisdiction.

[119] I dismissed Ms. Shisheesh’s RFD insofar as she was seeking relief with respect to the IAP process and with respect to any claims she may have against Wallbridge on the grounds that she had no standing and because the court did not have the jurisdiction to grant the relief requested.[^22]

14. H-15019 v. Wallbridge and Canada

[120] As noted above, in 2018, H-15019 commenced an action against P. James Wallbridge, Lindsay McNicoll, and Wallbridge, Wallbridge. Canada was joined as a co-defendant. Canada was accused of having breached the IRSSA.

[121] In January 2019, Canada brought a motion, which was heard by Justice Gordon. Canada submitted that H-15019’s action should be dismissed: (a) as an abuse of process because of the IRSSA release; (b) an abuse of process as res judicata; (c) because the IRSSA implementation order provides that no suit can be brought against Canada in relation to its discharge of responsibilities under the IRSSA without leave of the court and no such leave for this action has been sought or obtained; and (d) the action must be brought before an Administrative Judge pursuant to both the Approval Order and the Implementation Order in accordance with the Court Administration Protocol.

[122] Concurrently, Wallbridge brought a motion to have the action against them dismissed on the basis that they were discharged by the IRRSA release.

[123] With respect to Canada’s motion, Justice Gordon held that: (a) the IRSSA release did not provide a release and bar a claim for a breach of the IRSSA; (b) that the matter of whether there had a breach of the IRSSA because Canada had not disclosed the transcripts from the Cochrane civil actions was res judicata but the matter of whether the failure to disclose the OPP documents was an actionable breach of the IRSSA had not been resolved and remained to be determined.[^23]

[124] Further, Justice Gordon held that leave to make a claim against Canada was only required with respect to Canada’s administrative role under the IRSSA. However, the Approval Order provided that it was for the Administrative Judges to make orders to implement and enforce the IRSSA. In this last regard, Justice Gordon stated at paragraphs 46-48 of his decision:

46. In my view this action against Canada does involve both the implementation and enforcement of the IRSSA. It involves implementation of the IRSSA because it requires consideration of the disclosure obligations contained within it. It involves enforcement of the IRSSA because it seeks a remedy arising from an alleged breach of the contract. An award of damages for breach of a contract is a form of enforcement of that contract. All the more so when, as in this case, punitive damages are sought.

47.Furthermore, the breach of the IRSSA relied upon by the plaintiff has already been the subject of a decision by the Administrative Judge in [St. Anne’s #1]. Having the action proceed outside of the Court Administration Protocol and with potential for findings that may be inconsistent with that decision should be avoided.

48.It follows that this action should properly have been brought by way of Request for Directions before the Eastern Administrative Judge.

Conclusion

49. I have determined that this action, insofar as it relates to Canada, should have been initiated before the Eastern Administrative Judge pursuant to the Court Administration Protocol.

50. The appropriate remedy is complicated by the fact that this action is brought against Canada and against solicitors who initially acted for the plaintiff in the IAP and against whom the action is properly brought outside the provisions of the IRSSA and its Implementation Order.

51. If the action against Canada must be initiated pursuant to the Court Administration Protocol, it would make sense that the action involving the remaining defendants somehow follow along with it. I note that in at least one case a Supervisory Judge has assumed jurisdiction of an action that involved issues and parties both within and without the IRSSA [See Daniels v. Daniels 2009 MBQB 192]. It remains unclear how this might be effected in this case.

52. In these circumstances it is appropriate to stay this action as against Canada pending further Order of the Eastern Administrative Judge and it is ordered accordingly.

[125] Canada did not appeal Justice Gordon’s decision.

[126] With respect to Wallbridge’s motion, Justice Gordon dismissed the motion,[^24]and Justice Gordon’s decision was upheld by the Court of Appeal.[^25]

15. Korkmaz et al v. Nelligan and Canada

[127] On April 5, 2018, Ms. Korkmaz, H-00199, and E-10044 commenced an action against Nelligan and Canada. They sued: (a) Nelligan for breach of contract, breach of fiduciary duty, breach of loyalty and good faith, and for negligence; and (b) Canada for breach of the IRRSA.

[128] Ms. Korkmaz, H-00199, and E-10044 each claimed compensatory damages of $500,000 and punitive damages of $500,000.

[129] Nelligan denies it did anything wrong, and it intends to defend the action against it.

[130] The 2018 Civil Action is being case managed by Justice Gordon, and on June 3, 2020, Justice Gordan made the following endorsement at a case management conference:

1. This case management conference was reconvened at the request of counsel for the Plaintiff. It had earlier been adjourned while counsel and the court awaited the outcome of an appeal in a similar action in which the defendant lawyers had sought dismissal of the action based upon releases contained in the IRSSA. That appeal has now been dismissed, and it is clear that the action as against the lawyer defendants may continue.

2. Counsel for the Defendant lawyers wishes to bring a pleadings motion, and counsel for the Plaintiff has agreed that it would be appropriate to have that motion determined on a written record only. […]

3. Based upon another decision made in the similar action referred to above, it appears that the Plaintiff must bring this matter before the Eastern Administrative Judge for direction. The Plaintiff has agreed to serve a Request for Directions by June 17, 2020.

4. Aside from the pleadings motion to be brought by the Defendant lawyers, it is anticipated that this action will be held in abeyance until such time as the Eastern Administrative Judge has determined how the action against Canada is to proceed. Once the parties have received that determination, a further case management conference can be requested by any party to best determine how this action can be brought to trial.

[131] This somewhat cryptic endorsement is what precipitated the RFD now before the court. The reference to “upon another decision made in the similar action” is an allusion to H-15019 v. Wallbridge and Canada and Justice Gordon’s two decisions and the decision of the Court of Appeal, dismissing the lawyers’ appeal.

[132] The gist of the endorsement is that Justice Gordon held that insofar Ms. Korkmaz’s, H-00199’s, and E-10044’s 2018 Action implicated Canada and was based on an alleged breach of the IRSSA, a direction was required from the judges administering the IRSSA for Ontario. Justice Gordon was treating their action the same way he had treated H-15019’s 2018 Action.

16. The Sunset of the IAP

[133] As these incidents in the saga of the IAP claimants was running their course, the IAP was running its course. The Adjudicators adjudicated all the applications and the IAP ceased to exist in March 2021.

[134] On March 31, 2021, with the completion of all IAP claims across the country, the IAP was terminated. The appointments of the Chief Adjudicator and of the IAP Adjudicators ended. The administrative apparatus that supported the Chief Adjudicator and the IAP adjudicators, which was known as the Indian Residential Schools Adjudication Secretariat, was wound up.

[135] Until its closure in March 2021, over 38,000 claims were processed in the IAP, with over 26,700 hearings held.

[136] There were 427 IAP claims involving the survivors of St. Anne’s.

17. The Independent Review of St. Anne’s Claims

[137] In 2021, upon Canada’s request, I approved an independent review of St. Anne’s claims, to be undertaken by an Independent Special Advisor and to inquire whether the adjudication of IAP claims may have been impacted by the disclosure issues that are at the heart and centre of H-15019’s 2018 Action and Ms. Korkmaz’s, H-00199’s, and E-10044’s 2018 Action.[^26]

[138] As the above account of the factual background to the RFD now before the court reveals, concerns about Canada’s disclosure of documents also animated the RFDs brought or supported by Ms. Korkmaz, H-15019, Chief Metatawabin, the Mushkegowuk Council, the PKKA and Ms. Shisheesh and several other RFDs that I could have mentioned.

[139] I ordered that the Honourable Ian Pitfield continue in the role of Independent Special Advisor (or more concisely, “Advisor”). I gave him a mandate to conduct a review of IAP claims by former students of St. Anne’s to report to the court with his findings, conclusions, and recommendations. More precisely, paragraph 10 of the April 20, 2021 Order provides as follows:

10. In the report, the Advisor shall make an independent determination for each IAP Claimant whose IAP claim was resolved (whether by adjudication, settlement, negotiation, or withdrawal) before additional disclosure was made available pursuant to the orders made in Fontaine v. Canada (Attorney General), 2014 ONSC 283 (“St. Anne’s #1”) and Fontaine v. Canada (Attorney General), 2015 ONSC 4061 (“St. Anne’s #2”), and the Advisor shall report to the court answers to the following questions:

(a) Were the 2014/2015 disclosure documents available for the claim’s adjudication?

(b) If not, could the 2014/2015 disclosure and use of the documents for the IAP have materially affected the amount of compensation paid on the claim? and,

(c) If the disclosure and use of the documents could have materially affected the amount of the compensation, what additional compensation should have been paid in accordance with the IRSSA?

[140] On December 9, 2021, I released Mr. Pitfield’s Report. The report also included the report of the amicus, Rodger W. Linka. I had appointed Mr. Linka to advocate the interests of the St. Anne’s IAP claimants.[^27] In my endorsement releasing Mr. Pitfield’s Report, I stated at paragraph 13:

13. The Advisor’s Final Report and the Amicus’ Report speak for themselves, and I will not endeavour to summarize these reports. I do, however, emphasize:

(a) the Advisor’s conclusion that none of the documents produced by Canada pursuant to the 2014 and 2015 Orders should be regarded as having been available to claimants or counsel, whether before or after the date of either production Order;

(b) the Advisor’s conclusion that with the exceptions noted in Appendix “G”, Schedule 3 of his Report, none of the Production Documentation could have affected the adjudicated result in relation to any claim nor, as a result, the amount of compensation awarded in respect of any claim;

(c) the Advisor’s conclusion that no increase in the amount of any adjudicated St. Anne’s award is required;

(d) the Amicus’ conclusions that: a review of the St. Anne’s IAP claims was necessary; the claims were largely decided on the basis of the credibility and reliability of the claimant’s sworn testimony, and no information from the Production Documents would have improved or enhanced the claims made;

(e) the Advisor’s observations made at page 92 of his Final Report about the insufficiency of admissions made by Canada in what were known as the “student-on-student” cases;

(f) the Advisor’s recommendation at page 93 of that report, namely, that Canada should review the Production Documentation in relation to the claims identified in Appendix “G”, Schedule 2 to the Advisor’s Final Report for the purpose of framing admissions regarding St. Anne’s supervisors’ knowledge of male on male, male-on female, and female-on-female sexual abuse throughout the history of St. Anne’s up to 1976 when it was closed; and,

(g) the Advisor’s recommendation that the claims that were dismissed because of lack of knowledge should be reviewed against any resulting admissions and appropriate awards made where the student-on-student abuse was not subsumed by other more serious claims of sexual abuse.

E. Discussion and Analysis

[141] Although, the RFD now before the court required the above lengthy account of the factual background, the required legal analysis can be accomplished very concisely and precisely.

[142] Concision and precision can be accomplished because the essence of this RFD is the narrow issue of whether the breach of contract claim against Canada, which has been joined to solicitor’s negligence actions, will be tried as an aspect of the administration of the IRSSA or tried as a normal civil action in the Superior Court of Justice. In either eventuality, there will be a trial in the Superior Court of Justice.

[143] It has already been determined by Justice Gordon in a judgment affirmed by the Court of Appeal that the waiver in the IRSSA does not foreclose the actions against Wallbridge (or against Nelligan as a necessary corollary). Thus, the essence of the RFD now before the court constricts to the even narrower issue of whether the breach of contract claim against Canada can be joined to the claim against the lawyers. As a matter of the rules of joinder, there is no issue that the claims can be joined, and Justice Gordon has already dealt with the extent to which the IRRSA release immunizes Canada.

[144] So, with further constriction, the only issue now to determine is whether the action against the lawyers and Canada must be filtered through the administration of the IRSSA.

[145] In this last regard, I agree with Justice Gordon that insofar as the 2018 Actions relate to Canada, the actions should have been initiated before the Eastern Administrative Judge pursuant to the Court Administration Protocol fashioned for the IRSSA.

[146] What needs, however, to be understood is that the administration of the IRSSA and the Court Administration Protocol are procedural not jurisdictional. The IRSSA was a settlement of a class action in the superior courts across the country. The IRSSA did not and could not oust any jurisdiction of the superior court. The Court Administration Protocol is what it is described to be; it is an administrative protocol for an omnibus multi-jurisdiction class action that has national overtones.

[147] As a matter of procedure and efficiency and institutional memory to ensure consistency, the Court Administration Protocol directs that actions relating to the enforcement of the IRSSA and the implementation of the IRSSA be initiated before the Administrative Judges.

[148] The resulting RFDs remain proceedings in the superior court subject to the supervision of appellate courts including the Supreme Court of Canada.

[149] At the end of the day, the Court Administration Protocol is not jurisdictional or substantive, it is procedural. As a procedural matter, in the immediate case, there is no reason not to have Justice Gordon adjudicate the claims against the lawyers joined with the claims against Canada.

[150] Canada objects and submits that the claims against it in the 2018 Actions cannot be joined with the claims against Nelligan and Wallbridge because of res judicata, issue estoppel, no proof of breach, no causation of harm and no proof of damages. Canada’s objections and submissions, however, conflate substantive defences - which remain to be determined - with what is no more and no less than an esoteric procedural matter about which judge of the superior court is assigned a professional negligence and breach of contract claim.

[151] Thus, in accordance with the Court Administration Protocol, the Eastern Administrative Judge assigns the claims against Canada to be tried by Justice Gordon who is already seized of the claims against Nelligan and Wallbridge LLP.

F. Conclusion

[152] For the above reasons, the Requestors’ RFD is granted with costs in the cause of the 2018 action. The Requestors’ action against Canada and Nelligan shall proceed in the Superior Court of Justice outside of the administration of the IRSSA.

[153] I add that it follows from this RFD that H-15019’s action against Canada and Wallbridge should also proceed in the Superior Court of Justice before Justice Gordon.

Released: December 20, 2021

Fontaine v. Canada (Attorney General) (re Civil Action K-10106, H-00199 and E-10044), 2021 ONSC 8363

COURT FILE NO.: 00-CV-192059

DATE: 2021/12/20

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-00199

ST. ANNE’S IAP CLAIMANTS E-10044

Requestors

REASONS FOR DECISION

PERELL J.

Released: December 20, 2021

[^1]: S.O. 1992, c.6.

[^2]: Fontaine v. Canada (Attorney General) (re IAP Claimants K-10106, H-08199 and E-10044), 2021 ONSC 4363

[^3]: (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 (S.C.J.).

[^4]: 2012 BCSC 839 at paras. 29-30.

[^5]: Fontaine v. Canada (Attorney General), 2012 BCSC 1671 at para. 38.

[^6]: (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 (S.C.J.)..

[^7]: Fontaine v. Canada (Attorney General), 2012 ONCA 471 at para 39.

[^8]: Fontaine v. Attorney General (Canada), 2012 BCSC 839 at para. 120; Baxter v. Canada (Attorney General) (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 at para. 12 (S.C.J.)

[^9]: Fontaine v. Attorney General (Canada), 2012 BCSC 1671 at para. 50.

[^10]: Lavier v. MyTravel Canada Holidays Inc., 2011 ONSC 3149; Bodnar v. Cash Store Inc., 2011 BCSC 667 at paras. 96-130; Fantl v. Transamerica Life Canada, 2009 ONCA 377 at para. 39; Sparvier v. Canada (Attorney General), 2006 SKQB 4999 at para. 13; Kelman v. Goodyear Tire and Rubber Co. (2005), 2005 CanLII 803 (ON SC), 5 C.P.C. (6th) 161 at para. 25 (Ont. S.C.J.).

[^11]: 2014 ONSC 283 [St. Anne’s #1].

[^12]: Fontaine v Canada (Attorney General), 2018 ONCA 421 at paras. 92-93 [Metatawabin RFD #1], aff’g 2017 ONSC 2487.

[^13]: N.N. v Canada (Attorney General), 2018 BCCA 105 at para. 164.

[^14]: 2019 SCC 20.

[^15]: 2015 ONSC 4061.

[^16]: Fontaine v. Canada (Attorney General), 2016 ONSC 4328.

[^17]: Fontaine v. Canada (Attorney General), 2017 ONSC 1149.

[^18]: Fontaine v. Canada (Attorney General), 2017 ONSC 2487.

[^19]: Fontaine v Canada (Attorney General), 2018 ONCA 421 at paras. 92-93 [Metatawabin RFD #1], aff’g 2017 ONSC 2487.

[^20]: Fontaine v. Canada (Attorney General), 2017 ONSC 2487.

[^21]: Fontaine v Canada (Attorney General), 2018 ONCA 421 at paras. 92-93 [Metatawabin RFD #1], aff’g 2017 ONSC 2487.

[^22]: Fontaine v. Canada (Attorney General), 2018 ONSC 103.

[^23]: IAP Claiming H-15019 v. P. James Wallbridge, 2019 ONSC 1627.

[^24]: IAP Claiming H-15019 v. P. James Wallbridge, 2019 ONSC 1617.

[^25]: IAP Claiming H-15019 v. P. James Wallbridge, 2020 ONCA 270, leave to appeal to the S.C.C. ref’d [2020] S.C.C.A. No. 206.

[^26]: Fontaine v. Canada (Attorney General), 2021 ONSC 2921. See also: Fontaine v. Canada (Attorney General), 2021 ONSC 3605; Fontaine v. Canada (Attorney General), 2021 ONSC 5795.

[^27]: Fontaine v. Canada (Attorney General), 2021 ONSC 8104.