



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA
    1023

DATE: 20181213

DOCKET: C65851 and C65955

Pepall, Hourigan and Trotter JJ.A.

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 Caibaiosa-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 Pauchey, Stanley Thomas Nepetaypo,
    Flora Northwest, Norma Pauchy, Camble Quatell, Alvin Barney Saulteaux,
    Christine Semple, Dennis Smokeyday, Kenneth Sparview, 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 Incorporates 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 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 Soeurs De Notre Dame Auxiliatrice, Les Soeurs De St. Francois D'assise,
    Institut Des Soeurs Du Bon Conseil, Les Soeurs De Saint-Joseph De
    Saint-Hyacinthe, Les Soeurs De Jesus-Marie, Les Soeurs De L'assomption 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 if Montreal, Sisters
    of Charity (Grey Nuns) of Alberta, Les Soeurs De La Charite Des T.N.O,
    Hotel-Dieu De Nicolet, The Grey Nuns Of Manitoba Inc. Les Soeurs Crises 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, Omi Lacombe Canada Inc. and Mt. Angel
    Abbey Inc.

Defendants

(Respondent)

and

Chief Adjudicator Indian
    Residential Schools Adjudication Secretariat

Respondent

(Appellant)

Proceeding
    under the
Class Proceedings Act,
1992, S.O. 1992, C.6

Joseph Arvay and Andrew Faith, for the appellant

Catherine Coughlan and Brent Thompson, for the
    respondent, the Attorney General of Canada

Heard: November 23, 2018

On appeal from the orders of Justice Paul M. Perell of
    the Superior Court of Justice, dated September 5, 2018 and September 27, 2018,
    with reasons reported at 2018 ONSC 5197 and 2018 ONSC 5706.

By the Court:

A.

Overview

[1]

These appeals arise in the context of the administration of the Indian
    Residential School Settlement Agreement (IRSSA). The appellant, the Chief
    Adjudicator for the Independent Assessment Process (IAP) under the IRSSA, is
    the subject of two directions issued by the Eastern Administrative Judge for
    the IRSSA. The appellant seeks an order setting aside both directions. These
    reasons explain why we have concluded that the appeal should be allowed and an
    order granted setting aside the directions.

B.

FACTS

(1)

IAP Administration

[2]

The Ontario Superior Court of Justice is one of nine provincial and
    territorial superior courts that in December 2006 and January 2007, on
    substantially identical terms, approved the IRSSA. On March 8, 2007, the courts
    issued orders governing the IRSSAs implementation, again on substantially
    identical terms (the Implementation Orders).

[3]

Schedule D to the IRSSA establishes the IAP, a claims adjudication
    process that acts as a means of providing compensation to individuals who
    suffered abuse at Indian residential schools.  The Chief Adjudicator is
    responsible for ensuring the proper implementation of the IAP.

[4]

The IAP provides for, among other things, an Oversight Committee.  One of
    its duties is to recruit and appoint, and if necessary terminate the
    appointment of, the Chief Adjudicator. However, in the Implementation Orders,
    the power of the Oversight Committee to appoint a Chief Adjudicator has been
    expressly limited and made subject to court approval. There is no concurrent
    limitation imposed in the Implementation Orders regarding the power of the
    Oversight Committee to terminate the Chief Adjudicator.

[5]

The Chief Adjudicators duties are also delineated in
    Schedule D of the IRSSA. They include putting into effect training programs and
    administrative measures, assigning hearings to adjudicators, and assigning and
    conducting reviews. Pursuant to Schedule D, the Chief Adjudicator is also obliged
    to 
prepare annual reports to the Oversight Committee on the functioning
    of the adjudicative process under the IAP. In the Implementation Orders, an
    additional reporting obligation is imposed on the Chief Adjudicator. Paragraph
    7 provides:

THIS COURT ORDERS that in addition
    to any other reporting requirements, the Chief Adjudicator shall report
    directly to the Courts through the Monitor not less than quarterly on all
    aspects of implementation and operation of the IAP. The Courts may provide the
    Chief Adjudicator with directions regarding the form and content of such
    reports.

[6]

The Implementation Orders created two other positions
    that are relevant in these appeals. A Court Counsel was appointed and charged
    with assisting the courts in their supervision of the implementation and
    administration of the IRSSA. A Court Monitor was also appointed and, as per
    para. 4 of the Implementation Orders,
is obliged to
    communicate with, take directions from and report to the courts upon the
    implementation and administration of the Agreement in such manner and at such
    times as the Courts direct.

[7]


In addition to the foregoing, the Implementation
    Orders established a process (the Court Administration Protocol) in which a
    party, counsel or other entity with standing in respect of the Agreement may
    file a Request for Direction (RFD) with the supervising courts relating to
    the implementation of the IRSSA: see the Court Administration Protocol, at
    para. 2.
The Court Administration Protocol
designates
    two administrative judges from among nine supervising judges, who determine
    whether a case management conference and a hearing are required.

[8]

Finally, pursuant to para. 23 of the Implementation
    Orders, courts are permitted to make further ancillary orders as necessary to
    implement and enforce the provisions of the IRSSA.

[9]

The IAP has been in operation since 2007 and is now
    substantially complete. As of September 9, 2018, 37,826 of 38,255 claims have
    been resolved. Of claims that go to a hearing or result in a negotiated
    settlement, 89% of claimants are successful in obtaining compensation. The IAP is
    not expected to wind-up before March 31, 2021.

(2)

The Impugned Directions

(a)

The First Direction

[10]

On
    September 5, 2018, the Eastern Administrative Judge, on his own motion and
    without notice to any party, issued a direction (the First Direction)
    prohibiting the appellant from continuing his participation in three appeals
    (the Impugned Appeals), one before the Supreme Court of Canada and two before
    the British Columbia Court of Appeal . The Eastern Administrative Judge found
    the appellant was insubordinate and in defiance of the supervising courts.

[11]

In
    reaching this conclusion, the Eastern Administrative Judge pointed to: (a) the
    appellants overtly partisan positions, based on the content of his facta in the
    Impugned Appeals, (b) the appellants failure to describe his participation in
    the Impugned Appeals in a report via the Monitor to the courts, and (c) the
    appellants efforts to hold re-review adjudications in abeyance, pending the
    outcome of an appeal considering issues of procedural fairness in the IAP:
Fontaine
    v. Canada (Attorney General)
, 2018 ONSC 5197.  He directed the appellant
    to withdraw from the Impugned Appeals and remove his facta from the Supreme
    Court of Canada and British Columbia Court of Appeal registries. In addition,
    the Eastern Administrative Judge ordered that the Chief Adjudicators future
    legal fees had to be authorized by
Court
    Counsel
.

[12]

One
    of the Impugned Appeals was to be argued before the Supreme Court of Canada on
    October 10, 2018. The appellant filed a Notice of Appeal against the First
    Direction in this court and moved for a stay pending the hearing of the appeal.
    Sharpe J.A. granted that stay on September 12, 2018. Following a case
    management conference call, Sharpe J.A. directed that the appeal against the
    First Direction be heard on November 23, 2018.

(b)

The Second Direction

[13]

On
    September 27, 2018, the Eastern Administrative Judge issued another direction
    (the Second Direction), again on his own motion and without notice to any
    party. The Second Direction purports to rescind 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:
Fontaine
    v. Canada (Attorney General)
, 2018 ONSC 5706, at para. 4.

[14]

The
    Second Direction appoints
amicus curiae
and directs him to bring a RFD
    to be considered at a hearing to be held 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 appellant has taken partisan positions before courts without proper
    instructions from supervising courts or advice from the Oversight Committee,
    and failed to properly report his activities to the supervising courts: at
    para. 7. The issue of whether the appellant complied with a specific order
    issued by the supervising judge for British Columbia is also included in the
    list of matters to be considered.

[15]

The
    appellant filed a Notice of Appeal against the Second Direction on October 5,
    2018 and then moved for a stay pending determination of the appeal, which was
    granted by Sharpe J.A. on October 17, 2018. He further ordered that the two
    appeals be heard together. Prior to the hearing of the appeals, counsel had
    raised concerns about the evidentiary record. No argument was advanced to limit
    the materials before us and we see no reason to address this issue any further.

C.

issues

[16]

These
    appeals raise the following issues:

(1)

Should the First Direction be set aside?

(2)

Should the Second Direction be set aside?

(3)

Should this court adjudicate the issues raised in the
    directions?

(4)

If the answer to issue 3 is no, how should the issues
    raised in the directions be determined?

D.

analysis

(1)

First Direction

(a)

Was the appellant owed procedural fairness?

[17]

The
    appellant submits that the First Direction amounted to a finding against him of
    serious misconduct akin to contempt of court. Accordingly, the appellants
    position is that the strict procedural protections of contempt proceedings
    ought to have been afforded to him. He submits that instead of being provided
    with the procedural protections he was entitled to, he was given no notice that
    the First Direction was in contemplation, no opportunity to be heard, and no
    opportunity to contribute to the accuracy of the facts as found by the Eastern
    Administrative Judge. Indeed, no one ever brought concerns about his conduct to
    his attention before the issuance of the First Direction. This, he argues,
    amounts to a breach of procedural fairness and natural justice, which was
    further compounded by entrusting Court Counsel with the authority to deny the
    Chief Adjudicator funding for counsel.

[18]

In
    response to this argument, the respondent, the Government of Canada, asserts
    that no duty of procedural fairness or natural justice was owed to the
    appellant. It relies on the courts supervisory jurisdiction over the IRSSA, as
    confirmed by the Supreme Court of Canada in
Fontaine v. Canada (Attorney
    General)
, 2016 ONCA 241, 130 O.R. (3d) 1, at para. 172, affd 2017 SCC 47,
    [2017] 2 S.C.R. 205.

[19]

The
    respondent submits that the Eastern Administrative Judge is always entitled to
    raise concerns about the Chief Adjudicators activity, particularly in order to
    ensure that the objectives of the IRSSA are met. Moreover, because the Chief
    Adjudicator is court appointed, the supervising courts must be afforded
    substantial latitude to direct his activities and, where the courts determine a
    need, they may intervene and provide direction. In these circumstances, the
    respondent argues, no duty of procedural fairness or natural justice is owed to
    the appellant.  Instead, the court can simply issue directives when and how it
    sees fit.

[20]

We
    will consider below the respondents arguments regarding the extent of the
    courts supervisory powers and how those powers may be exercised. For present
    purposes, we note that the First Direction contained findings made by a judge of
    the Superior Court that cast aspersions on the appellants professional
    judgment and competence. Further, the First Direction ordered him to take
    certain actions, failing which he was at risk of being terminated from his
    position.

[21]

Contrary
    to what the respondent argues, it is precisely because the Eastern
    Administrative Judge was exercising his judicial functions that he owed the
    appellant an elevated duty of procedural fairness and natural justice. Of the
    many principles underlying the Canadian judicial system, generally those who
    will be subject to an order of the court are to be given notice of the legal
    proceeding and afforded the opportunity to adduce evidence and make submissions:
A.(L.L.) v. B.(A.)
, [1995] 4 S.C.R. 536, at para. 27.  It is our view,
    therefore, that the Eastern Administrative Judges power to supervise must be
    exercised in a manner that conforms to the principles of natural justice and
    respects the rights of the appellant to procedural fairness.

(b)

Was the standard of procedural fairness satisfied?

[22]

After
    determining that the appellant was owed a duty of procedural fairness, the next
    step in our analysis is to determine whether the appellant was afforded rights
    to procedural fairness aligned with the principles of natural justice. While
    not conceding that a duty of procedural fairness applies, the respondent
    advances two arguments in support of its contention that the appellant was
    dealt with fairly.

[23]

First,
    the respondent notes that, before the issuance of the First Direction, Court
    Counsel engaged in a dialogue with the Chair of the Oversight Committee,
    wherein he raised the Eastern Administrative Judges concerns regarding the
    appellants conduct. In our view, those interactions only serve to underscore
    the lack of procedural fairness in this case. After some initial discussions
    between Court Counsel and the Chair, a request was made by the Chair to permit
    her to consult with the members of the Oversight Committee about the concerns
    raised by Court Counsel at their next meeting six days hence. The response to
    that request came the following day in the form of an email from Court Counsel
    attaching the First Direction.

[24]

We
    fail to see any urgency that would justify this arbitrary termination of
    discussions. These interactions demonstrate a rush to judgment unimpeded by
    even the most basic measures of procedural fairness and natural justice.

[25]

The
    second argument advanced by the respondent is that the First Direction included
    a procedure to permit the appellant to respond to the allegations of misconduct
    made against him. Counsel for the respondent is referring to the provision in
    the First Direction, that if the appellant did not comply with what he was
    directed to do by the deadline cited therein, he shall appear before me on
    September 20, 2018 to show cause why the Order approving his appointment as
    Chief Adjudicator should not be rescinded: at para. 61.

[26]

We
    do not read this provision as affording the appellant any measure of procedural
    fairness or natural justice. It does not contemplate the appellant being able
    to make submissions to reverse the decision of the Eastern Administrative
    Judge. Rather, it amounts to nothing more than a warning that unless all the
    orders in the First Direction were implemented by the deadline mandated by the
    Eastern Administrative Judge, the appellant would have to explain why he should
    not be terminated from his position as Chief Adjudicator. Further, as noted above,
    the power to terminate the Chief Adjudicator resides with the Oversight
    Committee, not the Eastern Administrative Judge.

[27]

In
    our view, the appellants rights to procedural fairness were not respected in
    the present case. The appellant was afforded no opportunity to participate in
    the Eastern Administrative Judges fact-finding process, given no warning that
    his activities were being impugned, and was deprived of the opportunity to
    adduce evidence and make submissions. It must be remembered that the appellant
    occupies a significant role in the administration of a multi-billion dollar class
    action settlement. The First Direction compromised the appellants professional
    reputation and his ability to carry out his mandate as Chief Adjudicator. No
    person occupying such an important public position should be the subject of
    adverse judicial findings regarding the exercise of his or her duties without
    being granted some measure of procedural fairness and natural justice.

[28]

In
    summary, the First Direction was issued in a manner that denied the appellant
    the most basic elements of procedural fairness and natural justice. It must be
    set aside, and we so order.

(2)

Second Direction

[29]

The
    Eastern Administrative Judge issued the Second Direction in the same manner as
    the First Direction. The appellant was afforded no opportunity to make
    submissions or participate in the process. Accordingly, the Second Direction must
    also be set aside on the grounds of lack of procedural fairness and breach of
    natural justice.

[30]

The
    appellant raises an additional ground for setting aside the Second Direction.
    He submits that the Second Direction violates the law of
functus officio
.
    We accept that submission.  We also note that the respondent takes no position
    on this submission. Once the First Direction was issued, the Eastern Administrative
    Judges jurisdiction over the matter was exhausted. While the First Direction
    was under appeal, he had no authority to rescind and replace it with the Second
    Direction.

[31]

The
    principle of
functus officio
addresses the very harm at issue in these
    appeals, namely that a lower court must not interfere with the jurisdiction of an
    appellate court:
Doucet-Boudreau v. Nova Scotia (Minister of Education)
,
    2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 75-79. Pursuant to the principle of
functus
    officio
, courts do not have the power to amend an order except in limited
    circumstances, which have no application in this case. The Second Direction
    purports to entirely rescind and replace the First Direction for the express
    purpose of avoiding appellate review. In addition, the Eastern Administrative
    Judge further held that the appeal of the First Direction was largely moot as
    a result of the first stay order made by Sharpe J.A.: at para. 3. The Eastern Administrative
    Judge had no jurisdiction to make that finding. In so doing, he violated the
    principle of
functus officio
,
and did so in a way that usurped
    the jurisdiction and function of this court by purporting to decide an issue
    under appeal.

(3)

Hearing in this Court

[32]

The
    appellant has filed evidence on these appeals addressing the substantive
    concerns raised by the Eastern Administrative Judge regarding his conduct. It is
    his position that this court should determine these issues. We decline to do so
    for two reasons. First, as will be discussed below, the IRSSA provides a
    process for adjudication for such issues and that process should be followed.
    Second, even if we had jurisdiction, given how this proceeding unfolded, we are
    not confident that there is a proper evidentiary record to determine these
    issues.

(4)

Adjudication of the Issues

[33]

Given
    our conclusion that this court should not determine the substantive issues
    raised in the First Direction and Second Direction, what remains outstanding is
    a question as to how these issues should be adjudicated. To answer this
    question, we turn to the RFD process and further ask whether supervising courts
    can commence proceedings on their own initiative.

[34]

A
    RFD to the supervising courts is the process mandated by the Implementation
    Orders for applications regarding the administration of the IRSSA
. Where a hearing is required, the administrative
    judges determine the jurisdiction in which the hearing should be held. Where
    the issues will affect all jurisdictions, the hearing may be directed to any
    court supervising the IRSSA.

[35]

There
    is nothing in the Court Administration Protocol that permits the courts to
    initiate their own process. Instead, it is contemplated that it is the parties that
    bring RFDs to the courts. If the respondent has a concern about that conduct,
    there is nothing preventing it from bringing a RFD. Engaging in the RFD process
    would permit all parties to adduce evidence, make submissions, and to receive
    the direction of the court.

[36]

The
    question that remains is whether the supervising courts can initiate their own
    proceedings, such as the one contemplated in the Second Direction, to review
    the conduct of the Chief Adjudicator? The respondent advances two arguments in
    support of that right.

[37]

The
    first argument is that because the appellant is court appointed, he is subject
    to orders made by the court on its own motion. We reject that submission on the
    ground that any such general power is limited by the terms of the constating
    documents. The IRSSA, the Implementation Orders, and the Court Administration
    Protocol provide a detailed procedure regarding the adjudication of issues that
    arise in the administration of the IAP. That process must be respected. While the
    courts have a supervising role, it is one that must be guided by the IRSSA and
    the Implementation Orders. The supervising courts are not free to graft on
    their own processes to the mandated RFD process.

[38]

The
    respondents second argument is based on the language in para. 7 of the
    Implementation Orders that the Courts may provide the Chief Adjudicator with
    directions regarding the form and content of his quarterly reports. It submits
    that this provision grants supervising courts the authority to provide
    directions regarding how the Chief Adjudicator is undertaking his duties,
    beyond the execution of his reporting obligation. For example, in the present
    case, the respondent argues this provision granted the Eastern Administrative
    Judge the authority to sanction the appellant for his participation in the
    Impugned Appeals.

[39]

In
    our view, this submission reads into para. 7 of the Implementation Orders
    sweeping powers that its language cannot reasonably bear. While there is no
    doubt that the supervising courts may enforce their limited power regarding the
    form and content of reports, that provision does not permit the type of
    comprehensive review of the Chief Adjudicators performance as found in the
    First Direction.
In that regard, we note that this limited
    reporting duty contrasts sharply with the relationship between the Court
    Monitor and the
supervising
courts, which requires the
    Court Monitor to not only report but also take direction from the
supervising
    courts.
The obligations of the Chief Adjudicator to the
    supervising courts, and the corresponding authority of the
supervising
courts, is much more limited.

[40]

In
    addition, any such limited review conducted by the supervising courts regarding
    the Chief Adjudicators reports must be carried out in a procedurally fair
    manner. The provision relied on by the respondent does not permit the supervising
    courts to issue sweeping unilateral declarations impacting the operation of the
    IAP and the actions of the Chief Adjudicator.

E.

disposition

[41]

We
    order that the First Direction and the Second Direction be set aside. It is
    open to any party to bring a RFD regarding the issues canvassed in the directions.
    Given the Eastern Administrative Judges involvement described above and his
    views expressed regarding these issues, we order that any such RFD be conducted
    by a different supervising judge. This order should not be interpreted as
    impeding the supervising courts from taking such steps as they deem necessary
    to provide the appellant with directions regarding the form and content of his
    reports, provided that the process for those directions is conducted in a
    procedurally fair manner and the directions are limited in scope to the form
    and content of the reports. Again, we are of the view that the Eastern
    Administrative Judge should not participate in that process.  Further, if the
    parties cannot agree on the costs of these appeals, they may make brief written
    submissions.

[42]

Finally,
    we make these observations. The IRSSA was designed to give some measure of
    redress to victims of a dark chapter in Canadian history.  Since its
    implementation, tens of thousands of victims have been compensated and billions
    of dollars have been dispersed. That accomplishment is attributable in no small
    measure to the many people who are part of the IAP, including the appellant and
    the Eastern Administrative Judge. As noted above, this ground breaking process
    is nearing completion.  It is hoped that the parties can work together in the
    spirit of cooperation that underlies the IRSSA to resolve any concerns regarding
    the appellants performance of his duties. To the extent that the parties are
    unable to resolve outstanding issues, we would encourage them to seriously
    consider mediation.

Released: S.E.P. December 13, 2018

S.E. Pepall J.A.

C.W. Hourigan J.A.

G.T. Trotter J.A.


