Court File and Parties

COURT FILE NO.: C-17-21465 & C-21-0267 DATE: 2023-07-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

IAP Claimant H-15019 Plaintiff – and – P. James Wallbridge, Lindsy McNicoll and Wallbridge, Wallbridge Defendants

AND

IAP Claimant T-00178 Plaintiff – and – P. James Wallbridge and Wallbridge, Wallbridge Defendants

Counsel: Mr. C. Wanless, for the Plaintiff (Responding Party) Mr. G. Adair, for the Defendants P. James Wallbridge and Wallbridge, Wallbridge (Moving Parties) Ms. B. Thompson / Ms. D. Vassberg for the Attorney General of Canada (Responding Party)

HEARD BY ZOOM: June 29, 2023

Decision on Motion

R.D. GORDON J.

Overview

[1] The defendants P. James Wallbridge and Wallbridge, Wallbridge seek an order adding the Attorney General of Canada (“AGC”) as a party defendant. They contend that doing so is necessary to ensure procedural fairness to them and to allow the court to effectively adjudicate upon the issue of apportionment if liability is found against them.

Background

[2] The plaintiffs were represented by the moving defendants in their claims for compensation for abuse suffered at St. Anne’s Residential School. They claim that the moving defendants were negligent and/or in breach of their contractual obligation while advancing their claims under the Independent Assessment Process (“IAP”) provided for in the Indian Residential Schools Settlement Agreement (“IRSSA”). They allege, among other things, that the moving defendants failed to ensure that a full and complete documentary record was before the adjudicator when their claims were considered.

[3] The IAP obligated Canada to, among other things, search for, collect and provide a report about the persons named in the Application Form as having abused a Claimant, gather documents about the Residential School the Claimant attended, and write a report summarizing those documents. The documents were to include any documents mentioning sexual abuse at the residential school in question and all documents were to be given to the adjudicator assessing any particular claim. Those same documents were to be available for a Claimant or their lawyer to review if requested.

[4] The plaintiffs’ claims include allegations that the moving defendants knew the documents amassed by Canada for the St. Anne’s Indian Residential School were deficient but took no steps to require Canada to meet its obligations, failed to advise the adjudicator that the documents provided by Canada were inaccurate and deficient, and failed to file relevant documents in their possession which would have assisted the Claimants. It is alleged that the adjudication was conducted “on a wholly deficient and misleading record” leading to a dismissal of their original IAP claims and causing them mental distress and anguish.

[5] The plaintiffs’ claims plead that Canada’s disclosure obligations under the IRSSA, including the preparation of complete and accurate Indian Residential School Narratives and Persons of Interest Reports, were not met.

[6] The plaintiffs’ claims against the moving defendants are limited to the degree to which the defendants are at fault. Implicit in the claims is an acknowledgment that Canada may also have liability for the damages suffered by them. In addition, the moving defendants will plead that if they are liable to the claimants the AGC shares that liability to the degree apportioned by the court.

[7] The interest of the moving defendants is ensuring there is a fulsome record before the court that will allow for the proper apportionment of liability.

Analysis

[8] The moving defendants bring their motion under Rule 5.03 of the Rules of Civil Procedure which provides that every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding and provides the court with authority to add any such person as a party.

[9] Counsel for the moving defendants was characteristically frank in admitting that they make no claim against the AGC. They contend that adding the AGC is necessary to ensure procedural fairness to them and to allow the court to effectively adjudicate upon the issue of apportionment of liability.

[10] The determination of whether a person is a “necessary party” typically involves a consideration of whether that person is likely to be affected or prejudiced by the order being sought in the action. If the order will determine the rights of a person who is not a party, that person should be added so that his voice will be heard by the court before his rights are determined. See *Abrahamovitz v. Berens*, 2018 ONCA 252, [2018] O.J. No. 1404 (OCA); *Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry)*, 2015 ONSC 7969.

[11] As the AGC will not be affected or prejudiced by any final order in these actions, the moving defendants ask the court to deviate from this general principle given the specific circumstances of this case.

[12] The courts have recognized that fault can be apportioned against a non-party and that there may be procedural unfairness towards the party seeking to establish the apportionment if they are unable to obtain some form of documentary and oral discovery from the non-party. See *Taylor v. Canada (Minister of Health)*, 2009 ONCA 487, 95 O.R. (3d) 561]. In the usual course, this concern would be addressed by resort to Rules 30.10 and 31.10 of the Rules of Civil Procedure which provide for production and discovery of non-parties with leave of the court.

[13] However, in Canada (A.G.) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, the Supreme Court of Canada held that s. 27 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 does not clearly and unequivocally lift the Crown’s common law immunity from discovery in proceedings in which it is not a party. The effect is that the Crown cannot be required to submit to discovery as a non-party and subrules 30.10 and 31.10 are of no assistance to the moving defendants. They are left in the unenviable position of having to establish apportionment of liability to the AGC but without any of the procedural safeguards that would otherwise be available to them to do so.

[14] It is a compelling argument that in the particular circumstances of this case adding the AGC is required to enable the court to adjudicate effectively and completely on the issues in these proceedings. However, simply adding the AGC could result in wide-ranging and ill-defined discovery and document production that would add significantly to the complexity and costs of these cases. It would undoubtedly lead to further delays in the ability of the plaintiffs to get these matters to trial.

[15] As pointed out by the plaintiffs, there is already a robust public record that establishes Canada’s failure to produce relevant documents and provide proper persons of interest reports and an accurate school narrative surrounding St. Anne’s Indian Residential School. They make the additional observation that the moving defendants have provided no evidentiary foundation to substantiate their discovery concerns.

[16] As the AGC points out, the moving defendants have not identified any documents or witnesses (or even types of documents or witnesses) that they believe are necessary from Canada in order for the court to effectively apportion liability in the actions.

[17] Rule 5.04(2) provides for adding a party on such terms as are just. Rule 21.04 provides that the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of these actions. Where, as here, apportionment of liability is a legitimate issue for the court’s consideration it is appropriate that the moving parties have some discovery rights vis-à-vis those against whom apportionment is sought. It is also important that those discovery rights be reasonable, particularly in actions governed by the simplified rules, and that the AGC’s participation be limited to the extent possible.

[18] In all of the circumstances and notwithstanding that the AGC will not be affected or prejudiced by any judgment in the actions, it is appropriate that it be added as a defendant under the following terms:

a. It shall not be required to file pleadings;

b. It shall not be required to attend for or be represented at trial, except as may be required pursuant to a valid summons to witness; and

c. Its participation in the action is to be limited to document production and oral discovery on the following terms:

i. The AGC shall be required to respond to the moving parties’ requests for production of specific documents in its possession, control, or power. In the absence of agreement on production of such documents the moving parties may, on motion, request an order requiring production, which order shall be granted if the court is satisfied that: (a) the document is not privileged; (b) the document is relevant to the apportionment of liability between the moving parties and the AGC; and (c) it would be unfair to require the moving party to proceed to trial without discovery of the document.

ii. The AGC shall be required to produce for examination for discovery such person or persons the moving defendants have reason to believe has information relevant to the apportionment of liability between the moving parties and the AGC. In the absence of agreement on who shall be subject to examination for discovery the moving parties may, on motion, request leave to examine such person or persons, which order shall be granted if the court is satisfied that: (a) there is reason to believe the person has information relevant to the apportionment of liability; (b) the moving parties have been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person they seek to examine; (c) it would be unfair to require the moving parties to proceed to trial without having the opportunity of examining the person; and (d) the examination will not, (i) unduly delay the commencement of the trial of the action, (ii) entail unreasonable expense for other parties; or (iii) result in unfairness to the person the moving party seeks to examine. The evidence of a person examined for discovery under this provision, either by agreement or by court order, may be read into evidence at trial under subrule 31.11(1).

iii. As these actions are proceeding under Rule 76, the moving defendants shall be constrained in any examination for discovery by the time limit set out in Rule 76.04(2).

Conclusion

An order shall issue that the AGC be added on the terms above. Although the moving parties have been successful on this motion, there are significant restrictions placed on the participation of the AGC as a defendant. Accordingly, a reduced costs award of $4,000 payable by the AGC is appropriate.

The Honourable Mr. Justice R.D. Gordon Released: July 4, 2023