Court File and Parties

COURT FILE NO.: 00-CV-192059CP DATE: 2024-08-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LARRY PHILIP FONTAINE et al, Plaintiffs AND: THE ATTORNEY GENERAL OF CANADA et al., Defendants

BEFORE: Justice Glustein

COUNSEL: Fay K. Brunning and Michael Swinwood, for the requestors Rishma Bhimji, Madeline Torrie, for the Attorney General of Canada Christopher Rapson for Assembly of First Nations

HEARD: August 16, 2024

Reasons for Decision

NATURE OF MOTION AND OVERVIEW

[1] The requestors Dr. Edmund Metatawabin and individual assessment procedure (IAP) claimants T-00185, S-20774 and the Estate of St. Anne’s[^1] IAP Claimant S-16753 (collectively, the Requestors) bring a motion seeking answers to 142 questions refused in an out-of-court cross-examination.

[2] The refusals were given in the cross-examination of Ms. Shauna Stewart (Stewart), held May 7, 2024, arising out of her affidavit sworn March 14, 2024. Stewart’s affidavit was delivered in support of the Request for Direction (RFD) Re: Summary Dismissal/Strike of Metatawabin RFD #2 (the Canada RFD) brought by the Attorney General of Canada (Canada). The Canada RFD is made in the context of the Indian Residential Schools Settlement Agreement (IRSSA).

[3] The Canada RFD was made in response to the Requestors’ “Fresh as Amended Request for Directions to Compel Canada to Comply with IRSSA Ancillary Orders of January 14, 2014 and June 23, 2015” (Metatawabin RFD #2).

[4] The Canada RFD seeks to strike Metatawabin RFD #2 on several bases including that:

(i) The Requestors (or certain of them) have no standing.

(ii) Metatawabin RFD #2 is time-barred.

(iii) Metatawabin RFD #2 is an abuse of process.

(iv) The requests in Metatawabin RFD #2 for appointment of a new Chief Adjudicator and a rectification procedure are not available.

(v) The Metatawabin RFD #2 request for revised narratives, person of interest (POI) reports and source documents is moot.

(vi) The Metatawabin RFD #2 request for a preservation order has been judicially determined, and is moot based on Canada’s undertaking to not destroy St. Anne’s IAP documents.

(vii) The Metatawabin RFD #2 request to find the Crown in contempt is bound to fail.

[5] Canada further seeks in its RFD an order for the “summary dismissal” of Metatawabin RFD #2 on the basis that Canada has complied with the IRSSA Ancillary Orders of January 14, 2014 and June 23, 2015 arising from the reasons for decision in Fontaine v. Canada (Attorney General), 2014 ONSC 283 and 2015 ONSC 4061 (the Ancillary Orders).

[6] In a case conference endorsement dated January 22, 2024 and styled Fontaine v. Canada (Attorney General), 2024 ONSC 476 (the Case Conference Endorsement), I held that the hearing of the Canada RFD would proceed before the hearing of Metatawabin RFD #2.

[7] I sit as the Supervising Judge appointed for matters related to Metatawabin RFD #2. Mr. Michael Eizenga is Locum Court Counsel assigned for matters related to Metatawabin RFD #2: see Fontaine v. Canada (Attorney General), 2023 ONSC 5396 at ¶6; Order of Justice Perell dated September 25, 2023.

[8] For the reasons set out below, I order that Canada provide answers to the following refusals given in the cross-examination of Stewart, as identified in the chart attached to these Reasons for Decision at Schedule “A”:[^2] 85, 136, 167(a), 167(b), 206 and 213. I dismiss the Requestors’ motion with respect to the balance of the refusals.

[9] In the chart, I set out my position on each of the refusals. I generally accept the positions of Canada on its refusals.

BACKGROUND

[10] The background to the Canada RFD and Metatawabin RFD #2 is generally set out in the Case Conference Endorsement.

[11] On March 1, 2024, Canada delivered its Fresh as Amended Request for Directions in the Canada RFD.

[12] On March 14, 2024, Canada delivered the affidavit of Stewart, a senior policy advisor with Crown-Indigenous Relations and Northern Affairs Canada. Stewart’s affidavit is the only evidence that Canada relies on for the Canada RFD.

[13] On April 15, 2024, the Requestors delivered a Responding Record containing an affidavit of Ms. Jennifer Gabriel (Gabriel), sworn the same day. Gabriel is a legal assistant to Requestors’ counsel, Ms. Fay Brunning.

[14] On May 7, 2024, the Requestors cross-examined Stewart, at which Canada refused many questions asked, which are the subject of this motion.

[15] Canada did not cross-examine Gabriel.

[16] On May 29, 2024, counsel to the Requestors emailed Locum Court Counsel to schedule this motion. The parties met in this regard with Locum Court Counsel on June 11, 2024 and, on consent, the schedule leading to this motion was established.

[17] On June 29, 2024, Canada delivered to the Requestors their answers to undertakings, advisements and refusals given at the cross-examination of Stewart.

[18] On July 17, 2024, counsel to the Requestors delivered a notice of motion seeking answers to questions refused. That notice of motion included requests for additional relief discussed at para. 23 below.

PRELIMINARY OBSERVATIONS AND THE PARTIES’ POSITIONS

[19] My Case Conference Endorsement directed that the Canada RFD would proceed before Metatawabin RFD #2. Consequently, the only issue before me on this motion is whether questions were properly refused. Relevance is determined by the scope of the Canada RFD, which is narrower than Metatawabin RFD #2.

[20] At the refusals hearing, the Requestors made written and oral submissions seeking answers to certain refusals which I noted may be relevant to Metatawabin RFD #2, but are not relevant to the Canada RFD. Any argument based on Metatawabin RFD #2 may be considered after the issues raised in the Canada RFD are determined by the court.

[21] Canada raises five broad categories to support its position that the refusals were proper:

(i) They are not relevant to Canada’s RFD.

(ii) Providing an answer would be disproportionate to any purported relevance.

(iii) The questions require the affiant to provide an opinion or to speculate.

(iv) The questions seek privileged information.

(v) The questions were already asked and answered at the cross-examination.

[22] At the hearing, Requestors’ counsel advised that they would not be moving at this time with respect to questions refused on the basis of solicitor-client privilege. Consequently, I do not consider the questions refused on that basis, other than question 85, which was specifically addressed at the hearing.

[23] Apart from answers to refusals, the Requestors seek the following additional relief in their notice of motion:

(i) An order by analogy to Rule 20.04(2.2) and/or Rule 39.03 of the Rules of Civil Procedure to compel the former Chief Adjudicator to present affidavit or oral evidence regarding the government’s compliance with the Ancillary Orders.

(ii) An order compelling the government to present oral evidence about why documents were not filed with the IRSSA Secretariat for every St. Anne’s IAP claim, including “settled” claims.

(iii) An order for production of transcripts of oral submissions made in any St. Anne’s RFD relied on by the government for which transcripts have not been produced, including hearings leading to the Ancillary Orders.

(iv) An order for Canada to produce original and revised POI reports and unredacted source documents to counsel for certain IAP claimants.

[24] At the hearing, I declined to consider the additional requested relief because such relief was not contemplated in scheduling this motion. As I indicated in the hearing, if the Requestors believe that this relief is necessary to respond to the Canada RFD, they may coordinate with Locum Court Counsel to schedule that motion before the hearing of the Canada RFD scheduled for November 26-28, 2024. As I discuss above, the issues in the Canada RFD are to be determined prior to any issues under Metatawabin RFD #2, so any preliminary issues which are relevant to the Canada RFD must be determined prior to that hearing.

ANALYSIS

Jurisdiction of the court

[25] The court’s powers to manage these RFDs are guided by the IRSSA Ontario Implementation Order and Court Administration Protocol, the Class Proceedings Act, 1992, S.O. 1992, c. 6 (in particular, s. 12) and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

The law on refusals in cross-examinations

[26] The law on the scope of relevance in out-of-court cross-examinations is generally set out in Ontario v. Rothmans Inc, 2011 ONSC 2504. Among other things, the questions must be relevant to the underlying proceeding (i.e., the Canada RFD): Rothmans, at para. 143.

[27] The scope of relevance in a cross-examination is narrower than in an examination for discovery. The question must be relevant to (i) the issues on the particular application or motion, (ii) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion, or (iii) the credibility and reliability of the deponent’s evidence: Rothmans, at para. 143.

[28] Determinations of relevance are matters of law: Sanctuary et al v. Toronto (City) et al, 2020 ONSC 4708 at para. 60.

[29] Proportionality considerations are matters of discretion. Refusals for proportionality reasons must be balanced against fairness considerations: Sanctuary, at paras. 61-63.

[30] Non-expert witnesses are to provide factual evidence only. Questions seeking a witness’ opinion, or asking the witness to speculate, are properly refused: Prowse v. Richmond Hill (Town) (2008), 169 ACWS (3d) 521 (Ont Div Ct) at paras. 2-3.

[31] Questions seeking privileged information are also properly refused: Sanctuary at para. 19. Documents, information, and communications shared or created in a “continuum of communications” for the purpose of obtaining legal advice are subject to solicitor-client privilege: Wintercorn v. Global Learning Group Inc, 2022 ONSC 4576 at para. 45.

[32] Documents and communications created for the dominant purpose of litigation, actual or contemplated, are subject to litigation privilege: General Accident Assurance Co v. Chrusz (1999) 1999 CanLII 7320 (ON CA), 45 OR (3d) 321 (CA) at para. 33.

The refusals

[33] In their written and oral argument, Canada refused the following questions identified in Schedule “A” on the basis of relevance: 15, 57, 58, 61, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 80, 153, 199, 201, 205(b), 213, 214, 248, 264, 269, 287, 312(a), 312(b), 316(d), 316(e), 318, 319, 326, 330, 334, 335, 341, 342, 345, 346, 347, 348, 349, 350, 351, 362, 383, 384, 387, 392, 393, 395, 396, 400, 407, 408, 409, 410, 411, 412, 414, 420, 421, 422, 430, 431, 450, 452, 453, 454, 455, 456, 457, 458, 459, 467, 471, 475, 476, 481, 484, 485, 486, 487, 488, 502, 504, 505/506, 508, 510, 511, 513, 515, 517, 521, 524, 529, 530, 534, 535, 538 and 539.

[34] In their written and oral argument, Canada refused the following questions identified in Schedule “A” on the basis that they are speculative, ask questions of law, or seek an opinion: 79, 136, 140, 141, 167(a), 167(b), 195, 197, 200, 205(a), 206, 207, 212, 244, 245, 254, 274, 276, 303, 418, 419, 433, 441, 483, 495, 500 and 501.

[35] In their written and oral argument, Canada refused the following questions identified in Schedule “A” on the basis of solicitor-client and litigation privilege: 62, 81, 85, 111, 112, 133, 235, 313, 314/315, 316(a), 316(b) and 316(c).

[36] In their written and oral argument, Canada refused the following questions identified in Schedule “A” on the basis that they were asked and answered at the cross-examination: 149 and 382.

Broad agreement with Canada’s position on the refusals

[37] I broadly agree with Canada that the questions refused on the basis of relevance are not relevant to the Canada RFD.

[38] For example, Requestors’ counsel sought responses to multiple questions (such as question 396) about whether certain IAP claimants had received POI reports. Answers to these questions would not be relevant for the Canada RFD, which only raises the issue of whether Canada had an obligation to file those POI reports at all. Consequently, it is not relevant whether Canada filed a particular POI for any individual claimant.

[39] In these reasons, I do not address the potential relevance of such a question to Metatawabin RFD #2, which may be considered when appropriate, depending on the results of the Canada RFD Hearing.

[40] Consistent with the limited scope of the Canada RFD, Canada acknowledged certain limitations to their positions and the materials that they filed in evidence. In particular, Canada acknowledged:

(i) Their abuse of process arguments are independent from RFDs brought by distinct requestors.

(ii) They do not rely on the final report of the Honourable Ian Pitfield, Independent Special Advisor, attached to the affidavit of Stewart, for any purpose other than to establish that all POI reports have been updated, but not necessarily provided to all IAP claimants.

(iii) Their arguments do not depend on disclosure of documents that would have been withheld because of third party obligations to the Catholic Church.

(iv) Their arguments do not depend on any settlement privileged agreements with IAP claimants.

[41] As discussed at the hearing, Canada’s acknowledgments confirm the scope of the Canada RFD, and the onus that they seek to discharge. Should Canada make any submissions on the hearing of the Canada RFD that raise potential relevance of the refusals, the Requestors may argue that Canada’s refusals are relevant to whether it has discharged its onus on such issues. That possibility does not impose an overbroad scope of relevance on Canada for purposes of having Stewart answer questions on cross-examination.

[42] I note that Canada refused some of the same questions on the basis of proportionality. Given my conclusions with respect to relevance, it is not necessary for me to make any conclusions with respect to proportionality.

[43] In any event, I agree with Canada that, given the narrow scope of the Canada RFD, the questions refused based on proportionality are also properly refused.

[44] By way of example, question 312(b) requests that Canada ask at least 31 individuals to produce any documents they may have in relation to implementation of the 2014 Ancillary Order. Even assuming some relevance for the purpose of the Canada RFD, the request is unnecessarily overbroad, and there is no unfairness to the Requestors in maintaining the refusal. I would exercise my discretion to maintain that refusal, and others identified by Canada as being disproportionate, on the same basis.

[45] I broadly agree with Canada that the questions refused on the basis that they call for speculation or opinion are properly refused. As an example, question 140 asks Stewart if the Ancillary Orders are binding on her or Canada. That is a legal question that only a court can answer. Stewart’s response would not be probative of the issues in Canada’s RFD.

[46] I further note that some of the questions refused on the basis that they call for speculation or opinion may also have been reasonably refused on the basis of relevance. For example, question 483 asks why the Department of Justice did not provide every IAP claimant with revised POI reports and revised source documents. Again, the Department of Justice’s rationale (which may also be subject to privilege), is not probative of whether the Ancillary Orders required Canada to file those documents, which is the issue in the Canada RFD.

[47] I broadly agree with Canada that the questions refused on the basis of solicitor-client and litigation privilege are properly refused. In any event, the Requestors advised at the hearing that they would not seek responses to questions refused on the basis of solicitor-client privilege at this time.

[48] I also agree with Canada that the questions refused on the basis that they were asked and answered at the cross-examination are properly refused.

[49] For the above reasons, I broadly accept Canada’s positions on the refusals.

Particular refusals to be answered

[50] I disagree with Canada’s position with respect to question 213, which was refused on the basis of relevance. This is a question of fact that may be relevant to the interpretation of the Ancillary Orders, and thus was a proper question for the cross-examination of Stewart. This question should be answered, and I order Canada to do so.

[51] I disagree with Canada’s position with respect to questions 136, 167(a), 167(b) and 206, which were refused on the basis that they call for speculation or opinion. These are proper questions of fact, which do not require Stewart to speculate or give an opinion. These questions should be answered, and I order Canada to do so.

[52] I disagree with Canada’s position with respect to question 85, which was refused on the basis of privilege. This question does not require Stewart to reveal privileged information. To the extent she received non-privileged information and belief as set out in that question, Stewart should answer, and I order Canada to do so.

Timetable for the Canada RFD

[53] As identified earlier, a hearing is scheduled for the Canada RFD on November 26-28, 2024. The schedule for exchange of factums for the Canada RFD is currently:

(i) Canada to file moving factum on or by August 28, 2024.

(ii) Respondents to file responding factum on or by September 27, 2024.

(iii) Canada to file reply factum (if any) on or by October 21, 2024.

[54] Given the limited refusals that Canada is required to answer pursuant to these reasons, Canada shall deliver answers by September 11, 2024. This requires some adjustment to the timetable that has been set for the hearing of the Canada RFD. I amend the schedule for exchange of factums as follows:

(i) Canada to deliver its moving factum on or by September 13, 2024.

(ii) Requestors to deliver their responding factum on or by October 14, 2024.

(iii) Canada to deliver any reply factum (if any) on or by October 28, 2024.

[55] Finally, I reiterate that parties should not provide correspondence to the court or Locum Court Counsel raising substantive legal or factual argument. The court will only consider such substantive arguments when properly before it in the form of affidavit evidence and written legal submissions, which can then be considered by the court before, during, and after oral argument. Litigation by e-mail will not be permitted.

ORDER AND COSTS

[56] For the above reasons, the refusals motion is granted in part. I order Canada to answer the following questions refused identified in Schedule “A”: 85, 136, 167(a), 167(b), 206 and 213.

[57] The parties agreed that the issue of costs will be reserved for the hearing of the Canada RFD.

GLUSTEIN J.

Date: 2024-08-22

COURT FILE NO.: CV-00-CV-192059CP DATE: 2024-08-22

ONTARIO SUPERIOR COURT OF JUSTICE

LARRY PHILIP FONTAINE et al. Plaintiffs AND: THE ATTORNEY GENERAL OF CANADA et al. Defendants

REASONS FOR DECISION Glustein J.

Released: August 22, 2024

[^1]: St. Anne’s Indian Residential School (St. Anne’s IRS) in Fort Albany, Ontario. [^2]: Schedule “A” is the chart of refusals delivered by Canada to the Requestors, adjusted to include a question that the Requestors assert was missing from Canada’s chart, to remove questions that the Requestors did not move on, and, as I discuss at para. 9 below, to incorporate the bases for my positions on the refusals (which frequently incorporate the positions identified in Canada’s written argument).