



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA
    832

DATE: 20181017

DOCKET: M49699 (C65955)

Sharpe J.A. (In Chambers)

BETWEEN

Larry Philip Fontaine
    in his personal capacity and in his capacity as the executor of the estate of
    Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter
    Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum,
    Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan,
    Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor,
    James Fontaine in his personal capacity and in his capacity as the executor of
    the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva
    Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak,
    Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley
    Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney
    Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward
    Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs

and

The Attorney General
    of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican
    Church of Canada, The United Church of Canada, The Board of Home Missions of
    the United Church of Canada, The Womens Missionary Society of the Presbyterian
    Church, The Baptist Church in Canada, Board of Home Missions and Social
    Services of the Presbyterian Church in Bay, The Canada Impact North Ministries
    of the Company for the Propagation of the Gospel in New England (also known as
    The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod
    of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The
    Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The
    Missionary Society of the Anglican Church of Canada, The Missionary Society of
    the Methodist Church of Canada (also known as the Methodist Missionary Society
    of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the
    Anglican Church of the Diocese of Quebec, The Synod of the Diocese of
    Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the
    Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of
    the Diocese of Keewatin, The Synod of the Diocese of QuAppelle, The Synod of
    the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee
    Board of the Presbyterian Church in Canada, The Board of Home Missions and Social
    Service of the Presbyterian Church of Canada, The Women's Missionary Society of
    the United Church of Canada, Sisters of Charity, A Body Corporate also known as
    Sisters of Charity of St. Vincent De Paul, Halifax, also known as Sisters of Charity
    Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Surs de Notre
    Dame-Auxiliatrice, Les Surs de St. François D'Assise, Institut des Surs du
    Bon Conseil, Les Surs de Saint-Joseph de Saint-Hyacinthe, Les Surs de Jésus-Marie,
    Les Surs de l'Assomption de la Sainte Vierge, Les Surs de L'Assomption de la
    Saint Vierge de L'Alberta, Les Surs de la Charité de St. Hyacinthe, Les uvres
    Oblates de L'Ontario, Les Résidences Oblates du Québec, La Corporation
    Épiscopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal
    Corporation of James Bay), The Catholic Diocese of Moosonee, Surs Grises de
    Montréall/Grey Nuns Of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les
    Surs de la Charité des T.N.O., Hôtel-Dieu de Nicolet, The Grey Nuns of Manitoba
    Inc.-Les Surs Grises du Manitoba Inc., La Corporation Épiscopale Catholique
    Romaine De La Baie D'Hudson - The Roman Catholic Episcopal Corporation of Hudson's
    Bay, Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculée du
    Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the
    Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of
    Ottawa, Oblates of Mary Immaculate -St. Peter's Province, The Sisters of Saint
    Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt.
    Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops
    Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic
    Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the
    Province of British Columbia, The Sisters of Charity of Providence of Western Canada,
    La Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic
    Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique
    Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The Missionary
    Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
    Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The
    Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles
    CA, Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver,
    Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of
    Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
    Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt.
    Angel Abbey Inc.

Defendants (Responding Parties)

and

Chief
    Adjudicator Indian Residential Schools Adjudication Secretariat

Respondent (Moving Party)

Proceedings
    under the
Class Proceedings Act
, 1992, S.O. 1992 c. 6

Andrew Faith and Sandy Lockhart, for the moving party

Catherine A. Coughlan and Brent Thompson, for the responding
    party, The Attorney General of Canada

Heard: October 15, 2018

REASONS FOR DECISION

[1]

On September 5, 2018, the Eastern Administrative Judge for the Indian
    Residential School Settlement Agreement (IRSSA), on his own motion and
    without notice to any party, issued a Direction (the First Direction)
    prohibiting the Chief Adjudicator for the Independent Assessment Process
    (IAP) from continuing his participation in three appeals: 2018 ONSC 5197. One
    of those appeals was to be argued before the Supreme Court of Canada on October
    10, 2018. The Chief Adjudicator filed a Notice of Appeal against the First
    Direction and moved for a stay pending the hearing of the appeal. I granted
    that stay on September 12, 2018, in reasons reported at 2018 ONCA 749.
    Following a case management conference call, I directed that the appeal against
    the First Direction would be heard on November 23, 2018.

[2]

On September 27, 2018, the Eastern Administrative Judge issued a Second
    Direction, again on his own motion and without notice to any party: 2018 ONSC
    5706. The Second Direction rescinds the First Direction and directs a
    different path that will provide for a fuller opportunity to canvass this Supervising
    Courts underlying concerns and provide the Chief Adjudicator with a full
    hearing with due process, as he submits is his due.

[3]

The Second Direction appoints an
amicus curiae
and directs him
    to bring a Request for Direction (RFD) to be heard at a hearing to be held in
    Toronto during November 2018 before two other supervising judges, one from the
    Supreme Court of Yukon and the second from the Superior Court of Québec. The
    Second Direction specifies five issues for the RFD to address and lists the
    materials to be considered. The issues to be addressed reflect similar concerns
    to those that motivated the First Direction, namely, whether the Chief
    Adjudicator has taken partisan positions before courts without proper
    instructions from Supervising Courts or advice from the IAP Oversight Committee,
    and failed to properly report his activities to the Supervising Courts. The
    issue of whether the Chief Adjudicator complied with a specific order issued by
    the Supervising Judge for British Columbia is included in the list of matters
    to be considered.

[4]

The Chief Adjudicator filed a Notice of Appeal against the Second
    Direction on October 5, 2018 and now moves for a stay pending the determination
    of that appeal. The Chief Adjudicator also asks that the second appeal be heard
    at the same time as the appeal from the First Direction.

[5]

I am advised by counsel that
amicus
has prepared the RFD and
    that December 19, 2018 has been set as the date for the hearing of the RFD. I
    note as well that of the three appeals that gave rise to the First Direction,
    the appeal before the Supreme Court of Canada has already been heard and the
    two appeals before the British Columbia Court of Appeal are to be heard on
    November 30 and December 13-14, 2018, before the date of the RFD hearing.

[6]

For the following reasons, I conclude that the interests of justice
    favour granting a stay and ordering this appeal to be heard with the appeal
    from the First Direction.

Jurisdiction

[7]

I am satisfied that the Second Direction is a final order from which an
    appeal lies to this court. If the Second Direction rescinds the First
    Direction, it has the effect of ending the appeal from the First Direction, as
    the Chief Adjudicator cannot appeal from an order that is no longer in effect.
    The Second Direction thus removes some of the issues raised in that appeal to
    another tribunal outside the jurisdiction of the Ontario courts. An order that
    finally determines the forum for the dispute is a final order for the purposes
    of appeal, even though the substantive issues remain to be determined by the
    court or tribunal held to have jurisdiction:
Manos Foods International Inc.
    v. Coca-Cola Ltd.
(1999), 180 D.L.R. (4th) 309 (Ont. C.A.), at para. 4.

Serious Issue to be Tried

[8]

I am satisfied that the appeal from the Second Direction raises several
    arguable issues.

[9]

As the order was made without notice and without a hearing, it is
    arguable that it was made in violation of the principles of procedural
    fairness.

[10]

It
    is, so far as I am aware, unprecedented for a judge to purport to rescind an
    order after it has been made, appealed and stayed, thereby effectively ending
    the appeal and replacing it with another process. Counsel for the responding
    party, the Attorney General of Canada, was unable to identify any such
    precedent. It is arguable that the Second Direction was issued in violation of
    the
functus officio
principle. As the Supreme Court of Canada stated
    in
Doucet-Boudreau v. Nova Scotia (Minister of Education)
, 2003 SCC
    62, [2003] 3 S.C.R. 3, at para. 79, the purpose of this principle is to allow
    finality of judgments from courts which are subject to appeal. The Supreme
    Court recognized that allowing the court appealed from to vary its orders would
    allow that court to assume the function of an appellate court and deny
    litigants a stable basis from which to launch an appeal:
Doucet-Boudreau
, at
para, 79.

[11]

It
    is also arguable that Second Direction amounts to an attempt to short-circuit
    the appeal to this court from the First Direction. The Second Direction
    declares the appeal to this court largely moot, rescinds the First Direction
    thereby removing the basis for the appeal, and purports to confer jurisdiction
    on two extra-provincial judges to decide some of the issues raised by the
    appeal. In addition, the terms of the RFD that the Eastern Administrative Judge
    directed the
amicus curiae
to bring appear to assume, if not decide,
    some of the issues raised before this court in the appeal from the First
    Direction. Issues 1 and 2 ask whether the Chief Adjudicator has taken partisan
    positions in litigation without having obtained instructions from the
    Supervising Courts. This arguably assumes that the Chief Adjudicator is
    required to obtain instructions or permission from a Supervising Judge as to
    positions taken before the courts, yet that very assumption is a contested
    issue that is raised in the appeal from the First Direction.

[12]

In
    my view, it is arguable that the Court Administration Protocol which governs
    the RFD process does not contemplate referring issues such as those the Eastern
    Administrative Judge identified to a panel of two judges from different
    provinces. As para. 5(c) of the Protocol provides, Where the issue(s) will
    affect all jurisdictions, the hearing may be directed to
any
    court
supervising the Agreement (emphasis added). The language of any
    court is singular, not plural. The issue of the Chief Adjudicators
    participation on court proceedings is one that affects all jurisdictions. It
    does not fall into the category of decisions resulting in an order that would
    constitute an amendment to the Agreement that may be referred to more than one
    supervising court under para. 5(d). In any event, it is arguable that a panel
    of two judges from different provincial and territorial superior courts should
    be avoided where the issue is hotly contested, as it is in the present case.
    What happens if the two judges disagree? Whether or not they agree, are there
    two appeals, one to each provincial or territorial court of appeal? If not, how
    is it to be determined to which court the appeal lies? What happens if there
    are two appeals leading to conflicting results?

Irreparable harm

[13]

The
    Attorney General of Canada argues that the Chief Adjudicator will not suffer
    irreparable harm if the RFD process ordered by the Second Direction is allowed
    to unfold at that same time as both appeals from both Directions make their way
    to this court.

[14]

I
    disagree.

[15]

In
    my view, irreparable harm could flow from allowing two parallel proceedings to
    unfold at the same time. Quite apart from the added cost of duplicative
    proceedings, there is a clear risk of inconsistent results. That would cause
    confusion from which the Chief Adjudicator and the IAP would suffer serious
    harm. Conflicting results would also cause harm by bringing the administration
    of justice into disrepute. Both are forms of irreparable harm sufficient to
    warrant the grant of a stay.

Balance of Convenience

[16]

In
    my view, the balance of convenience favours granting a stay. A stay would allow
    these proceedings to unfold in an orderly manner and avoid duplicative
    proceedings that could lead to inconsistent results. The propriety of the RFD
    process depends upon the correctness of the Second Direction. In my view, that
    issue should be resolved before the RFD process unfolds. If the Attorney
    General prevails, the RFD process can proceed as directed by the Eastern
    Administrative Judge, albeit with some delay. As both the appeals to the
    British Columbia Court of Appeal will be heard before the date set for the RFD,
    any such delay will not result in prejudice.

Disposition

[17]

Accordingly,
    I stay the Second Direction
nunc pro tunc
from the date it was issued
    and direct that the appeal in this matter be heard together with the appeal
    from the First Direction.

Robert J. Sharpe J.A.


