Court File and Parties
COURT FILE NO.: 00-CV-192059CP
DATE: 20241009
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 Daniel Engel, Rishma Bhimji, and Madeline Torrie, for the Attorney General of Canada
HEARD: In-writing
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[^2] seeking to summon Mr. Daniel Shapiro, the former Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat under the Indian Residential Schools Settlement Agreement (IRSSA), to provide evidence at the hearing of an RFD brought by Canada (the Canada RFD) seeking to strike 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).
[2] In the Canada RFD, Canada 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 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.
[3] 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 decisions in Fontaine v. Canada (Attorney General), 2014 ONSC 283 and 2015 ONSC 4061 (the Ancillary Orders).
[4] In particular, Canada pleads that, contrary to the allegations of Metatawabin RFD #2, the Ancillary Orders did not require it to make further disclosure for IAP clams that had been settled.
[5] I have reviewed the written submissions of the parties. For the reasons that follow, I find that the evidence of the former Chief Adjudicator is not relevant to the Canada RFD. Consequently, I dismiss the motion brought by the Requestors.
TRANSCRIPTS AND FACTUM DELIVERED AFTER DEADLINE FOR SUBMISSIONS
[6] After the deadline for written submissions, counsel for the Requestors provided court counsel, by email dated Saturday, October 5, 2024, with (i) transcripts from a hearing before Justice Perell on December 17 and 18, 2013 and (ii) the factum of the Chief Adjudicator at that hearing. Counsel for the Requestors advised court counsel that she had “not had a chance to read them through, but I suggest Justice Glustein may want to see these before he decides whether to order evidence from the former Chief Adjudicator.”
[7] This court has repeatedly advised counsel for the Requestors that issues before the court will not be decided on the basis of emails sent to court counsel. Issues will only be determined on affidavit evidence and proper written and oral submissions. Nevertheless, for the purposes of these reasons, I have reviewed the information provided by email and it does not change my reasons.
[8] Further, my review of the information provided by email for this motion should not be taken by the parties as an indication that the court is prepared to consider material and submissions made outside of the formal court process. In particular, for the upcoming Canada RFD, and for Metatawabin RFD #2 if a hearing is required, the formal process will be strictly followed. The court will not consider any submissions or evidence outside of the formal process agreed to by the parties.
FACTS
[9] In a case conference endorsement dated January 22, 2024 and styled Fontaine v. Canada (Attorney General), 2024 ONSC 476, I held that the hearing of the Canada RFD would proceed before the hearing of Metatawabin RFD #2. The background to the Canada RFD and Metatawabin RFD #2 is generally set out in that endorsement.
[10] In the context of the Canada RFD, Canada adduced an affidavit of Shauna Stewart, sworn March 14, 2024. Ms. Stewart was cross-examined on her affidavit on May 7, 2024, which resulted in Canada refusing to answer a number of questions.
[11] The Requestors moved on those refusals and, in their notice of motion, sought additional relief (set out in paragraph 23 of Fontaine v. Canada (Attorney General), 2024 ONSC 4656) (the “Refusals Decision”). The additional relief sought included:
(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 governments’ compliance with the Ancillary Orders”[^3] and
(ii) “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”.[^4]
[12] In the Refusals Decision, at para. 24, I declined to consider the additional relief requested, but indicated that the Requestors could move for such orders at a later date. The Requestors brought this motion. Though they initially indicated that the motion would address both the Evidence Relief and the Transcripts Relief, the Requestors only sought the Evidence Relief in their submissions.
[13] Consequently, I do not address the Transcripts Relief in these reasons.
ANALYSIS
The positions of the parties
[14] The Requestors submit that the evidence of the former Chief Adjudicator is relevant to the Canada RFD. In particular, the Requestors submit in their moving party factum that the evidence is relevant to “whether there was/was not compliance with the 2014 [Ancillary] Order”, which has been raised as a basis for summary judgment by Canada in its RFD.
[15] The Requestors make numerous broad arguments in support of their position. I refer to the following headings in their factum, which generally indicate the bases upon which they seek the Chief Adjudicator’s evidence:
(i) Chief Adjudicator was responsible for implementation of IAP; Chief Adjudicator Accountable to the Courts.
(ii) Chief Adjudicator failed to enforce St. Anne’s RFD #2 Order and he continuously avoided seeking directions to enforce the rights of at least 166 St. Anne’s IAP claimants.
(iii) Chief Adjudicator, Court Counsel and ONSC duty to follow SCC directions in J.W. v. Canada, 2019 SCC 20.
[16] Canada submits that the Evidence Relief is not relevant to the Canada RFD.
[17] Canada also submits that the former Chief Adjudicator’s evidence would be inadmissible opinion evidence related to interpretation of the Canada RFD pleading, and that this motion is brought for an improper purpose to impugn the court and the former Chief Adjudicator.
[18] The Requestors’ reply broadly asserts that the former Chief Adjudicator’s evidence should be before the court before the court can strike Metatawabin RFD #2. The Requestors submit that the former Chief Adjudicator was (i) closely involved in the IAP process, including being involved in the delivery of a notice about additional disclosure following the 2014 Ancillary Order, and (ii) required to enforce the IRSSA, including as it may relate to the parties’ disclosure obligations.
Analysis
[19] 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, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[20] For the reasons that follow, I find that the evidence sought is not relevant to the Canada RFD. Consequently, I do not address the other submissions raised by Canada.
[21] Generally, as indicated by the headings of the Requestors’ moving factum reproduced above, the Requestors submit that the former Chief Adjudicator’s evidence is relevant to the Canada RFD because he should have, but failed to, bring an RFD, effectively along the same lines as Metatawabin RFD #2 (i.e. to compel Canada to make disclosure to St. Anne’s IAP claimants whose IAPs were settled). However, that argument assumes that the Ancillary Orders required Canada to make the disclosure that the Canada RFD pleads was not required.
[22] While Canada seeks summary dismissal of the issue of compliance with the Ancillary Orders, it does so not on the basis of its conduct or the conduct of any other participant in the IRSSA process. To the contrary, Canada’s position on summary dismissal is limited to whether the language, context and background of the Ancillary Orders establish that Canada was not required to make further disclosure for IAP claims that had been settled.
[23] It is only if the court finds a genuine issue requiring trial on the interpretation issue raised by Canada that the conduct of Canada in relation to the Ancillary Order becomes relevant. Further, it is only at that time that the court could consider (if relevant), the alleged conduct of the former Chief Adjudicator with respect to the Ancillary Orders.
[24] Consequently, there is no basis in which the conduct of the Chief Adjudicator could be relevant to the interpretation issue raised in the Canada RFD seeking summary dismissal.
[25] The former Chief Adjudicator’s evidence is likewise not relevant to the other grounds asserted by Canada upon which it seeks to strike Metatawabin RFD #2. Specifically, the former Chief Adjudicator’s decision to not bring an RFD is not relevant to Canada’s arguments that:
(i) The Requestors do not have standing to represent other IAP claimants, which considers previous jurisprudence on standing under the IRSSA.
(ii) Metatawabin RFD #2 is time-barred, which considers the application of an order by Justice Brown in Fontaine v. Canada (Attorney General), 2016 BCSC 2218.
(iii) Metatawabin RFD #2 is an abuse of process, which considers the circumstances surrounding Metatawabin RFD #1 (Fontaine v. Canada (Attorney General), 2017 ONSC 2487).
(iv) The Requestors’ proposed rectification process is beyond the court’s jurisdiction to order, which considers previous case law addressing analogous requests and the present status of the IAP process.
(v) Certain requested relief are moot because Canada has already fulfilled such obligations, which considers requested relief in Metatawabin RFD #2 and Canada’s actions.
(vi) Contempt of court is not available against the Crown, which considers previous case law addressing analogous arguments.
[26] Similarly, I make no findings as to relevance of the evidence sought to any of the above issues if Canada’s positions are rejected on its RFD. My reasons relate solely to the Requestors’ arguments for this motion in writing and are based solely on the lack of relevance to any of the issues raised in the Canada RFD. These reasons for decision do not address the potential relevance of the former Chief Adjudicator’s evidence to Metatawabin RFD #2.
ORDER AND COSTS
[27] For the above reasons, I dismiss the motion. The parties did not seek costs.
GLUSTEIN J.
Date: 20241009
COURT FILE NO.: CV-00-CV-192059CP
DATE: 20241009
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: October 9, 2024
[^1]: St. Anne’s Indian Residential School (St. Anne’s IRS) in Fort Albany, Ontario. [^2]: The parties consented to this motion being heard in writing through correspondence to Locum Court Counsel on September 5, 2024. [^3]: I define this relief as the Evidence Relief. [^4]: I define this relief as the Transcripts Relief.