



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney
    General), 2020 ONCA 540

DATE: 20200827

DOCKET: M51681 (C68080)

Pepall J.A. (Motion Judge)

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/Respondents

(Responding
    Parties)

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 Women's 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 Qu'appelle, 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 Soeurs de
    Notre Dame-Auxiliatrice, Les Soeurs de St. Francois d'Assise, Insitut des Soeurs
    du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de
    Jesus-Marie, Les Soeurs de lAassomption de la Sainte Vierge, Les Soeurs de l'Assomption
    de la Saint Vierge de l'Alberta, Les Soeurs de la Charite de St.-Hyacinthe, les
    Oeuvres Oblates de l'Ontario, Les Residences Oblates du Quebec, La Corporation
    Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal
    Corporation of James Bay), The Catholic Diocese of Moosonee, Soeurs Grises de
    Montreal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les
    Soeurs de la Charitedes T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of
    Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale
    Catholique Romaine de la Baie d'Hudson-The Roman Catholic Episcopal Corporation
    of Hudson's Bay, Missionary Oblates -Grandin Province, Les Oblats de. Marie Immaculee
    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 Peres 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 Episcopale Catholique Romaine de Grouard, Roman Catholic
    Episcopal Corporation of Keewatin, La Corporation Archiepiscopale 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 Episcopale 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 Episcopale
    Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of
    Prince Rupert, Episcopal Corporation of Saskatoon, Omilacombe Canada Inc. and
    Mt. Angel Abbey Inc.

Defendants/Respondents

(Responding
    Parties)

Joanna Birenbaum and Chris Grisdale, for the
    moving party National Centre for Truth and Reconciliation

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

Stuart Wuttke and Jeremy Kolodziej, for
    the responding party the Assembly of First Nations

Catherine Boies Parker and John Trueman,
    for the responding party the Chief Adjudicator

Heard by videoconference: August 19, 2020

REASONS FOR DECISION

Background

[1]

This motion for a stay and various procedural directions arises in the
    context of the Indian Residential Schools Settlement Agreement (IRSSA).  The
    IRSSA resulted in the establishment of the Independent Assessment Process
    (IAP), under which former students who suffered physical, sexual, or
    psychological abuse could claim compensation. The IAP is administered by the
    Indian Residential Schools Adjudication Secretariat (the Secretariat) under
    the direction of the Chief Adjudicator.

[2]

Over 38,000 claims have been processed in the IAP and over $3 billion
    disbursed to former students. The Secretariat uses a database known as SADRE to
    case-manage the IAP claims. The IAP is coming to an end, and the Secretariat is
    to be closed and all claims adjudicated by March 31, 2021.

[3]

Before Perell J., the Eastern Administrative Judge, the Chief
    Adjudicator sought directions on the disposition of certain records (Non-Claim
    Records) held by the Secretariat. He made a proposal to archive most of them
    with the appellant, the National Centre for Truth and Reconciliation (NCTR).
[1]
This proposal was supported by the appellant and others, but not by the
    respondent, the Attorney General of Canada (Canada).

January 20, 2020 Order

[4]

On January 20, 2020, Perell J. rejected the proposal of the Chief
    Adjudicator and instead directed Canada to bring a Request for Directions
    (RFD) for court approval of a proposal for the archiving of copies of the
    Non-Claim Records with the appellant subject to certain delineated principles.
    Canadas RFD was to be made by June 30, 2020, but the date was then extended to
    September 30, 2020.

[5]

Justice Perell directed that Final Static Reports, also referred to as
    Static Reports,
[2]
were to be excluded from the Non-Claim Records to be archived. He concluded
    that Canadas submission that the generation of such reports would contravene
    the orders made in
Fontaine v. Canada (Attorney General)
, 2014 ONSC
    4585, affd 2016 ONCA 242, affd 2017 SCC 47 (the
In Rem
order) was well-founded. In addition, he wrote at paras. 220-21 of his reasons:

Further, having examined the model Static Reports, I observe
    that depending on what specific variables are selected, it might be possible by
    deductive reasoning to disclose the identities of IAP Claimants and this would
    arguably contravene the Orders made in
Canada (Attorney General) v.
    Fontaine
[Claims Records]. [D]epending on school size and temporal
    information, and variables based on age, sex, and acts of abuse by province, it
    might be possible to deduce confidential personal information from some of the
    proposed Static Reports. I am especially concerned that this may be possible in
    the case of some small and remote communities, leading to very unfortunate
    consequences.

He also concluded that the reliability and soundness of
    the models is doubtful without more information. Furthermore, truth and
    reconciliation would not be advanced. As such, he determined that Static
    Reports should not be archived with the appellant.

[6]

He also ordered that the Final Static Reports were not to be included in
    the IAP Final Report and Exhibits K and L of the October 25, 2019 Affidavit of
    Nicole Hansen, which contained drafts of Final Static Reports, were to remain
    under seal.

Past Orders

[7]

A number of orders have been made by the supervising courts in the
    course of the administration of the IRSSA. Three that are the subject matter of
    the stay motion have ordered that the SADRE database be destroyed. These courts
    have also issued various sunset orders governing the orderly closure of the IAP
    claims process, the expiry of the Chief Adjudicators mandate, and the wind-up
    of the Secretariat. The process to effect the destruction of SADRE could begin
    on December 31, 2020 and the Secretariat itself is to close on March 31, 2021.

Appeal

[8]

The appellant appealed
[3]
from the January 20, 2020 order and asked that: the Static Reports be included
    in the Adjudicators Final Report; the Chief Adjudicator be permitted to
    generate further aggregate Static Reports from the SADRE database, subject to
    the requirement that these Reports not identify any IAP claimants or alleged
    perpetrators; and the Static Reports could be archived with the appellant,
    Library and Archives Canada, or any other archive. In a nutshell, the
    appellants primary position on appeal is that invaluable information will be
    permanently lost if the Static Reports are destroyed.

[9]

On appeal, Canadas position is that the appellants request to halt the
    destruction of SADRE is non-justiciable, a collateral attack on the
In Rem
order already made, and amounts to re-litigation.

Relief Sought on Motion

[10]

Before
    me, the appellant seeks a stay pending appeal and the expiry of any further
    appeal period of the following: an August 6, 2014 order; para. 5(c) of a July
    4, 2018 order; and para. 12 of a May 29, 2020 order, insofar as these orders
    permit or require the destruction of the SADRE database prior to the determination
    of the appeal. It also seeks a stay pending appeal of the filing and hearing of
    Canadas RFD ordered in the January 20, 2020 order.

[11]

In
    addition, the appellant seeks certain procedural relief: an order expediting
    the hearing of the appeal; authorization to file a factum in excess of 30
    pages; and an order for directions on the appropriate scope of a sealing order
    for portions of its factum and Fresh as Amended Notice of Appeal.

[12]

On
    the request for a stay, Canada takes the position that it should be refused. It
    states that in
Fontaine
, the Supreme Court upheld the order that all
    who possess confidential information arising from the IAP must destroy it and
    must also refrain from any collateral use including for statistical and
    research purposes.

[13]

Canada
    argues that on this motion, the appellant is seeking to suspend the destruction
    aspect of the
Fontaine
order relating to the SADRE claims management
    database. SADRE, according to Canada, must be destroyed and its confidential
    data cannot be harvested for research or statistical purposes.

[14]

As
    for the RFD, Canada submits that there are no grounds to stop that work on the
    eve of the IAP sunset of March 31, 2021, and if the appellant is successful in
    its appeal, Canadas proposal may be modified.

Discussion

[15]

The
    test for a stay pending appeal is well established and is the same as the test
    for an interlocutory injunction, as described in
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334. The court is to
    consider: whether the appeal raises a serious question to be tried; whether an
    applicant would suffer irreparable harm in the absence of a stay; and the
    balance of convenience. The overarching consideration is whether the interests
    of justice call for a stay
: Zafar v. Saiyid
, 2017 ONCA 919, at para.
    18;
Longley v. Canada (Attorney General)
, 2007 ONCA 149, at paras.
    14-15.

[16]

In
    this case, I would decline to issue a stay. The parties all consent to an order
    for an expedited appeal and the orders that the appellant seeks to stay
    preserve the SADRE database until December 30, 2020. As a result, a stay is
    unnecessary if an expedite order is granted and the appeal is heard by the end
    of October or early November and decided before the end of the year. Indeed,
    the appellants counsel raised this possibility herself. There is also a real
    issue as to whether the stay relief sought by the appellant may be granted. Three
    of the orders sought to be stayed were never appealed, and the May 29, 2020
    order is from the British Columbia Supreme Court, albeit from the Western
    Administrative Judge. I am also not persuaded that Canadas RFD should be
    delayed, as it may be amended if that proves to be necessary as a result of the
    appeal decision.

[17]

In
    any event, in my view, it is reasonable to expedite the appellants appeal. The
    appellant is to perfect its appeal by August 31, 2020, and the respondents are
    to serve and file their materials by September 18, 2020. The appeal is
    scheduled to be heard on October 29, 2020. For oral argument, the appellant
    shall have 2 hours, Canada 1 hour, the Chief Administrator 15 minutes, and the
    Assembly of First Nations 25 minutes.

[18]

As
    for the appellants request to file a factum longer than 30 pages, one should
    be mindful that a longer factum may not be as effective as a focused, succinct
    factum. Nonetheless, the appellant is authorized to file a factum not to exceed
    53 pages in length.

[19]

The
    appellant also seeks directions on the appropriate scope of a sealing order
    with respect to certain yellow highlighted paragraphs in its proposed factum
    and in paragraph 5(a)(i) of its Fresh as Amended Notice of Appeal. In essence,
    it asks for guidance on compliance with the sealing order granted by Perell J.
    It agrees that all the red highlighted portions should be redacted.

[20]

In
    the order under appeal, at para. 8, Perell J. sealed two exhibits, which
    contained drafts of the Final Static Reports:

Exhibits K and L of the Affidavit of Nicole Hansen, affirmed
    October 25, 2019, which contain drafts of the Final Static Reports, shall
    remain under seal, but the body of the Affidavit and Exhibits A through J may
    be made available in the court file.

[21]

In
    supplementary reasons concerning the settling of the order (2020 ONSC 2107), at
    para. 22, Perell J. explained the content of the sealed exhibits:

The exhibits in question contain drafts of the final versions
    of what were described at the hearing of the RFD and in the Reasons as Static
    Reports. Due to concerns that the Static Reports could be construed as
    containing what was termed IAP Personal Information in the
In Rem
Order, the Chief Adjudicators counsel filed the Hansen affidavit with the
    court registry on a sealed basis pending further direction from the court, and
    provided it to other RFD hearing participants counsel on an undertaking to
    keep it confidential. In the Reasons, I directed that IAP Personal Information
    is to be excluded from the Non-Claim Records Collection to be assembled by
    Libraries and Archives Canada and that if there is any risk that a record could
    reveal IAP Personal Information, copies of the record shall be excluded from
    the Non-Claim Records Collection. [Footnotes omitted.]

[22]

As
    mentioned, the 
In Rem
Order referred to in the reasons is Perell
    J.s order of August 6, 2014, pertaining to documents produced and prepared for
    the resolution of claims made in the IAP. The
In Rem
Order, at para. 1
    provides in part:

lAP Documents and lAP Personal Information are private and
    confidential and may not be used or disclosed by anyone for any purpose other
    than resolving IAP Claims and paying compensation, for the limited purposes of
    prosecuting criminal or child protection or lawyer regulation proceedings, or
    as permitted by this Order and any other Orders made by the Supervising Courts
    in the course of implementation of the Settlement Agreement.

[23]


IAP Personal Information is defined as 
Personal Information about a Claimant, alleged perpetrator or other
    affected individual in respect of an IAP Claim that is obtained through the
    administration of an IAP Claim, and includes the fact that an identifiable
    individual is a Claimant, alleged perpetrator or other affected individual in
    respect of an IAP Claim. Personal Information is in turn defined as
    information that identifies an individual or that, alone or in combination
    with other available information, could permit or lead to the identification of
    an individual.

[24]

I
    have reviewed the yellow highlighted paragraphs in the appellants proposed
    factum and paragraph 5(a)(i) of the Fresh as Amended Notice of Appeal that are
    in issue. With the exception of the highlighted portions of paragraphs 64 and
    65, which expressly reference Exhibit K to the Hanson Affidavit that Perell J. had
    ordered sealed, and the last sentence of paragraph 90 in the proposed factum, I
    am unable to identify any problem with the remainder of the yellow highlighted
    provisions. The questioned statements appear to be generic in nature. As
    mentioned, the appellant proposes to redact those portions of the proposed
    factum highlighted in red.

Disposition

[25]

In summary: (i) the motion for a stay pending appeal is dismissed;
    (ii) the appeal is ordered expedited; (iii) the appellant is to perfect its
    appeal by August 31, 2020; (iv) Canada and the other respondents are to file
    their materials by September 18, 2020; (v) the appellant may file a factum up
    to 53 pages in length; (vi) directions on the scope of the sealing order
    granted by Perell J. permit the appellant to include paragraph 5(a)(i) of the
    Fresh as Amended Notice of Appeal and all yellow highlights contained in the
    proposed factum with the exception of those in paragraphs 64 and 65 and the
    last sentence of paragraph 90 ; and (vii) there shall be no order for costs of
    this motion.

S.E. Pepall J.A.






[1]

Its mandate under the IRSSA is to archive and store records
    collected by the Truth and Reconciliation Commission and other records relating
    to what were known as Indian Residential Schools.



[2]
Final Static Reports, or Static Reports, are new reports generated
    from the SADRE database used by the Secretariat and reflect final process and
    outcome data of the 38,000 IAP claims administered under the IAP. Static
    Reports include tables that represent a fixed extract from SADRE at the end of
    the IAP.



[3]

The appellant has since filed a Fresh as Amended
    Notice of Appeal.


