Fontaine v. The Attorney General of Canada, 2025 ONSC 1757

Court File No.: 00-CV-192059CP

Date Heard: January 20-23, 2025
Date of Judgment: March 20, 2025

Ontario Superior Court of Justice

Between:
Larry Philip Fontaine et al., Plaintiffs
and
The Attorney General of Canada et al., Defendants

Before: Justice Edward M. Morgan Glustein

Counsel:

• Daniel Engel, Rishma Bhimji, Madeline Torrie, and Sahara Douglas for the moving party, the Attorney General of Canada
• Fay K. Brunning, Liza Swale, and Michael Swinwood[^1] for the Respondents, Edmund Metatawabin, the St. Anne’s independent assessment process (IAP) claimants T-00185, S-20774 and the Estate of St. Anne’s IAP Claimant S-16753
• Christopher Rapson and Lacey Kassis for the Assembly of First Nations

Table of Contents

• Nature of RFD and Overview
• Facts
  • Background to the IRSSA and the IAP
  • St. Anne’s IRS and the Negotiation of the IRSSA
  • The IRSSA
  • The Administration Infrastructure of the IRSSA
  • Canada’s Roles under the IRSSA
  • The IAP
  • Additional background facts about the operation of the IAP
  • The decisions in St. Anne’s #1 and St. Anne’s #2
  • Additional facts from St. Anne’s #1 and St. Anne’s #2
  • Post-Ancillary Order claims by IAP claimants with Concluded Claims
  • The ISA RFD
  • Background to Metatawabin RFD #2 and the Canada RFD
  • Evidence on the Canada RFD
• Analysis
  • Issue 1 – Summary Determination of Metatawabin RFD #2
  • Issue 2: Is Metatawabin RFD #2 Time-Barred?
  • Issue 3: Is the Rectification Process Requested in Metatawabin RFD #2 Ultra Vires?
  • Issue 4: Is the Request for Canada to Revise the St. Anne’s School Narrative and POI Reports Moot?
  • Issue 5: Is the Request for a Preservation Order Moot?
  • Issue 6: Is the Request Regarding Contempt Available?
  • Issue 7: Is Metatawabin RFD #2 an Abuse of Process?
  • Issue 8: Standing and Representation Issues
• Order and Costs
• Appendices
• Footnotes

Nature of RFD and Overview

[1] Under the Indian Residential Schools Settlement Agreement (IRSSA), a “Request for Direction” (RFD) is a proceeding brought before a Supervising Judge pursuant to the Implementation Order of Justice Winkler (as he then was) dated March 8, 2007, in which a requestor seeks relief from the court to address, inter alia, alleged breaches of the IRSSA.

[2] In the present hearing, the Attorney General of Canada (Canada) brings a “Fresh as Amended Request for Direction (Re: Summary Dismissal/Strike of Metatawabin RFD #2)” (the Canada RFD). The Canada RFD seeks to summarily dismiss or strike “Metatawabin RFD #2”, which is an RFD brought by Dr. Edmund Metatawabin and St. Anne’s IAP claimants T-00185, S-20774 and the Estate of St. Anne’s IAP Claimant S-16753 (collectively, the Respondents).

[3] 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 para. 6.

[4] The court’s powers to manage 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 (Rules).

[5] In Metatawabin RFD #2, the Respondents seek expansive relief reproduced at Appendix “A” to these reasons for decision. Their core allegation is that Canada breached Justice Perell’s IRSSA Ancillary Orders of January 14, 2014 and June 23, 2015 (the Ancillary Orders) arising from the reasons for decision in Fontaine v. Canada (Attorney General), 2014 ONSC 283 (St. Anne’s #1) and 2015 ONSC 4061 (St. Anne’s #2).

[6] Specifically, at paragraph 1(a) of Metatawabin RFD #2, the Respondents seek a declaration that Canada failed to file revised “School Narrative” and “Person of Interest” (POI) reports “in each of the 427 St. Anne’s child abuse hearings”, which the Respondents submit was “[o]rdered from Canada under [the 2014 Ancillary Order].”

[7] A School Narrative report summarizes the relevant documents about a particular residential school. A POI report summarizes relevant evidence about a particular individual alleged to have been involved in misconduct at a residential school.

[8] It is generally understood that there were 427 St. Anne’s IAP claims in total under the IRSSA. Despite the claim in paragraph 1(a) of Metatawabin RFD #2, it is accepted by the parties that a revised School Narrative was made available for all St. Anne’s IAP claimants.

[9] Further, it is generally understood that Canada disclosed updated POI reports in St. Anne’s IAP claims that were ongoing as of August 1, 2014 (Ongoing Claims) but did not disclose updated POI reports to St. Anne’s IAP claimants for whom IAP decisions had been rendered by August 1, 2014 (Concluded Claims).

[10] All of the Respondents have Concluded Claims (other than Dr. Metatawabin who did not pursue an IAP claim).

[11] Consequently, the core issue under Metatawabin RFD #2 is whether Canada was required under the Ancillary Orders to disclose updated POI reports to St. Anne’s IAP claimants in Concluded Claims, even though the Respondents allege a broader failure by Canada to disclose updated POI reports to all St. Anne’s IAP claimants.

[12] The 2014 and 2015 Ancillary Orders are reproduced at Appendices “B” and “C” to these reasons for decision, respectively.

[13] Canada seeks an order for the “summary dismissal” of Metatawabin RFD #2 on the basis that Canada has complied with its obligations regarding updated POI reports from the Ancillary Orders.

[14] Canada submits that, to the extent Metatawabin RFD #2 alleges non-disclosure of revised POI reports in Ongoing Claims, no material facts have been pleaded, and there is no evidence to support such allegations.

[15] Canada submits that the Ancillary Orders did not require Canada to disclose updated POI reports in Concluded Claims. Canada acknowledges that it did not disclose updated POI reports to individuals with Concluded Claims but submits that it was not ordered to do so.

[16] The Respondents seek summary judgment on their claim that the Ancillary Orders require Canada to disclose updated POI reports in both Concluded and Ongoing Claims. At the hearing, the Respondents’ core submissions related to Concluded Claims.

[17] At the hearing, Canada also sought to strike Metatawabin RFD #2 in whole or in part on seven bases:

(i) Metatawabin RFD #2 is time-barred pursuant to the order of Justice Brown in Fontaine v. Canada (Attorney General), 2016 BCSC 2218 (the Bundled RFD).

(ii) The Metatawabin RFD #2 requests for appointment of a new Chief Adjudicator and a rectification procedure are not available because requests for similar relief were denied in St. Anne’s #1, Fontaine v. Canada (Attorney General), 2017 ONSC 2487 (Metatawabin #1), aff’d 2018 ONCA 421 (Metatawabin #1 CA) and Fontaine v. Canada (Attorney General), 2021 ONSC 2921 (the ISA RFD).

(iii) The Metatawabin RFD #2 request that Canada revise its School Narrative, POI reports and source documents is moot because all such materials were updated for the review conducted by the Independent Special Advisor (ISA).

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

(v) The Metatawabin RFD #2 request to find Canada in contempt is bound to fail because contempt is not available relief as against the Crown; while individuals representing the Crown can be subject to contempt, contempt is not available against the Crown itself. Canada separately submits that the specific request in Metatawabin RFD #2 to establish an investigation process to establish Canada’s contempt is ultra vires this court.

(vi) Metatawabin RFD #2 is an abuse of process because the issues should have been addressed in Metatawabin #1.

(vii) Dr. Metatawabin does not have standing to bring Metatawabin RFD #2 because he did not pursue an IAP claim and Justice Perell concluded in the ISA RFD that Dr. Metatawabin does not represent IAP claimants.

[18] For the reasons set out below,

(i) I summarily dismiss Metatawabin RFD #2. Canada complied with the Ancillary Orders and delivered updated POI reports for Ongoing Claims. Under the Ancillary Orders, Canada was not required to deliver updated POI reports in Concluded Claims.

(ii) I strike Metatawabin RFD #2 in its entirety on the basis that it is time-barred, based on the principles set out by Justice Brown in the Bundled RFD and referred to with approval by subsequent courts.

[19] Although not necessary given my findings above, I grant partial relief on some of the other bases set out in the Canada RFD. I conclude that:

(i) The requested rectification process is ultra vires this court, consistent with prior holdings in precedent RFDs.

(ii) The request that Canada revise its School Narrative, POI reports and source documents is moot because those documents have all been revised.

(iii) The request for a preservation order is moot because Canada has already provided an undertaking for such relief which has been accepted by the Court of Appeal.

(iv) The contempt investigation process requested by the Respondents in Metatawabin RFD #2 is struck since it is ultra vires this court. While the general contempt allegation should not be struck on the pleadings, no finding of contempt can arise given my conclusion that Canada complied with the Ancillary Orders.

(v) Dr. Metatawabin’s claim is an abuse of process. However, there is no abuse of process with respect to the individual IAP claimants.

(vi) Dr. Metatawabin does not have standing and thus cannot act as a requestor, but that result would not undermine the standing of the other Respondents under Metatawabin RFD #2. However, there is no basis to find that the Respondents can represent the interests of any other St. Anne’s claimants.

The remainder of the reasons for decision, including all factual background, analysis, and appendices, are as set out in the original judgment above.

Appendices

• Appendix “A”: Excerpt of Amended Fresh as Amended Request for Directions to Compel Canada to Comply with IRSSA Ancillary Orders of January 14, 2014 and June 23, 2015, dated December 19, 2024
• Appendix “B”: Order of Justice Perell in Fontaine, et al v. The Attorney General of Canada, et al, dated January 14, 2014
• Appendix “C”: Order of Justice Perell in Fontaine, et al v. The Attorney General of Canada, et al, dated June 23, 2015

Footnotes

[^1]: Mr. Swinwood did not appear at the hearing due to illness but acted as counsel for the Respondents. Ms. Brunning asked the court to include Mr. Swinwood as counsel on these reasons.

Released: March 20, 2025