



COURT OF APPEAL FOR ONTARIO

CITATION: Brunning v. Canada (Attorney General), 2018 ONCA
    1009

DATE: 20181210

DOCKET: M49477 (C64991)

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Fay Brunning

Requestor/Responding Party (Appellant)

and

Larry Philip Fontaine, et al.

Plaintiffs

and

The Attorney General of Canada, et al.

Defendants/Moving Party (Respondent)

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

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

Lawrence Greenspon, for the responding party, Fay
    Brunning

Heard: November 30, 2018

On appeal from the order of Justice Paul M. Perell of Superior
    Court of Justice, dated January 15, 2018, with reasons reported at 2018 ONSC
    357.

Doherty J.A.:


[1]

The respondent, the Attorney General of Canada, brought a motion to
    quash an appeal brought by Ms. Fay Brunning. At the end of oral argument, the
    court allowed the motion and quashed the appeal with reasons to follow. These
    are those reasons.

[2]

Ms. Brunning, a lawyer, represents persons involved in proceedings
    conducted under the auspices of the Indian Residential Schools Settlement
    Agreement, (the IRSSA).

[3]

On January 4, 2018, the Eastern Administrative Judge for the IRSSA
    released reasons addressing various issues raised in a Request for Directions
    brought by Ms. Brunning on behalf of her clients. The decision went largely,
    but not entirely, against Ms. Brunnings clients:
Fontaine v. Canada
    (Attorney General)
, 2018 ONSC 103.

[4]

Ms. Brunning sent several emails to court counsel on Thursday, January
    11 and Friday, January 12, 2018. In one of those emails she indicated that her
    client would not participate in the further scheduled proceedings before the Independent
    Assessment Process Adjudicator (the IAP Adjudicator) unless appropriate
    disclosure was made before the scheduled hearing date. Ms. Brunning was scheduled
    to make closing submissions on behalf of her client before the IAP Adjudicator
    a week later on January 19.

[5]

In her emails, Ms. Brunning also complained about the conduct of the
    Attorney General and failures in the adjudicative process, and she challenged the
    correctness of the Eastern Administrative Judges reasons that had been released
    on January 4. The emails revealed Ms. Brunnings frustration with the process and
    her disagreement with the January 4 decision.

[6]

On January 15, 2018, the Eastern Administrative Judge released a Direction
    (the January 15 Direction) in which he addressed the contents of the various
    emails sent by Ms. Brunning:
Fontaine v. Canada (Attorney General)
,
    2018 ONSC 357. The Eastern Administrative Judge issued the January 15 Direction
    on his own initiative and without requesting or receiving any input from
    counsel for any of the affected parties.

[7]

In the January 15 Direction, the Eastern Administrative Judge made it
    clear that Ms. Brunning and her client could not unilaterally decide that they
    would not appear as scheduled before the IAP Adjudicator. He said at paras. 3-5:

In her correspondence, Ms. Brunning also threatened to not
    attend at the resumption of [her clients] Independent Assessment Process
    (IAP) claim under the IRSSA. I regard that threat as disrespectful to IAP
    Adjudicators and to be a derogation of Ms. Brunnings duties to her client and
    as an officer of the court.



I direct Ms. Brunning to participate in the closing submissions
    of [her clients] hearing as directed by the IAP Adjudicator on Friday, January
    19, 2018.

[8]

Ms. Brunning and her client appeared before the IAP Adjudicator as
    scheduled and the matter proceeded to completion.

[9]

In the January 15 Direction, the Eastern Administrative Judge went
    beyond ordering Ms. Brunning to appear as required before the IAP Adjudicator. He
    commented at some length, and in a negative manner, about Ms. Brunnings conduct
    and statements she had made, both in her submissions in the proceeding that led
    to the January 4 decision and more particularly in her correspondence with court
    counsel on January 11 and 12.

[10]

Ms.
    Brunning, not her client, launched an appeal from the January 15 Direction. It
    is that appeal which the respondent Attorney General of Canada moved to quash.

[11]

In
    the Notice of Appeal, Ms. Brunning alleged that the Eastern Administrative
    Judge had exceeded his jurisdiction by failing to refer any complaint regarding
    the appellants conduct to the Independent Special Advisor. Ms. Brunning also
    alleged that the Eastern Administrative Judge had lost jurisdiction by failing
    to provide any procedural fairness and/or failing to apply or follow the rules
    of natural justice at any time prior to condemning the appellant in [the
    January 15 Direction].

[12]

On
    the motion to quash the appeal, the Attorney General of Canada does not
    challenge Ms. Brunnings standing to bring the appeal. Counsel does, however, argue
    that there is no order to appeal from, and that, if there is an order, it is
    interlocutory in nature and moot. Appeals from interlocutory orders made by
    Superior Court judges go to the Divisional Court. Leave to appeal is required:
Courts
    of Justice Act
, R.S.O. 1990 c. C.43, s. 19(1)(b).

[13]

The
    Attorney General of Canada submits that the Eastern Administrative Judges
    direction is an exercise of his case management powers and does not constitute
    an order as contemplated by s. 6(1)(b) of the
Courts of Justice Act
.

[14]

There
    is no formal order. However, the January 15 Direction contains an order requiring
    Ms. Brunning and her client to appear before the IAP Adjudicator.

[15]

I
    agree with counsel for Ms. Brunning that the January 15 Direction is an order.
    As counsel pointed out, the Eastern Administrative Judge identified his
    authority for issuing the January 15 Direction as coming in part from the order
    of Winkler R.S.J. dated December 15, 2006 to make such orders as are necessary
    to implement and enforce the provisions of the Agreement and this judgment:
    see
Fontaine
, 2018 ONSC 357, at paras. 6-8.

[16]

I
    accept that the January 15 Direction reflects an exercise of the Eastern
    Administrative Judges case management powers. However, that characterization
    does not make the January 15 Direction any less an order of the court. The
    terms of the January 15 Direction compelled Ms. Brunning and her client to
    attend before the IAP Adjudicator to complete the process. Ms. Brunning and her
    client were bound to comply with that order, subject, of course, to any
    superseding order of another court. The court could also enforce the command
    that Ms. Brunning and her client appear before the IAP Adjudicator using the
    means available for the enforcement of court orders. In my view, the January 15
    Direction clearly contained an order of the court directing Ms. Brunning and
    her client to appear as required before the IAP Adjudicator. That order is
    subject to appeal.

[17]

I
    do, however, accept the second argument advanced by the Attorney General of Canada.
    The January 15 Direction contained a single order. That order obliged Ms.
    Brunning and her client to appear before the IAP Adjudicator as scheduled on
    the following Friday.

[18]

The
    order was procedural and interlocutory. It did not determine any legal right in
    any proceeding involving Ms. Brunning or her client. Nor did it determine any
    substantive issue in any ongoing proceeding. I would note that, in any event, the
    clients legal rights are irrelevant. The client has not appealed.

[19]

The
    order made in the January 15 Direction is analogous to an order refusing an
    adjournment. When a court refuses an adjournment, it effectively orders the
    parties to appear as scheduled. I am not aware of any case that holds that the refusal
    of an adjournment, standing on its own, constitutes a final order for the
    purposes of the appeal. The order contained in the January 15 Direction,
    requiring the appellant and her client to attend before the IAP Adjudicator, is
    an interlocutory order.

[20]

It
    is clear from a review of the material filed on the appeal, that it is not the
    order made by the Eastern Administrative Judge that is the true target of this
    appeal. As pointed out above, the appellant and her client attended before the IAP
    Adjudicator and the matter has been decided. Any appeal from the January 15
    order is moot.

[21]

The
    appellants real concern arises out of the Eastern Administrative Judges
    comments about her conduct. She is understandably concerned that those
    comments, which are now part of the public record, could have a very negative
    impact on her professional reputation. The appellant takes the position that
    the comments are unwarranted, and that the Eastern Administrative Judge failed
    to comply with virtually every component of due process when he issued the
    January 15 Direction. She seeks a forum in which to challenge the process and
    the Eastern Administrative Judges comments.

[22]

As
    understandable as the appellants concerns may be, those concerns do not give
    rise to a right of appeal in this court. The Eastern Administrative Judges
    comments about counsel are not part of the order he made. The order consists of
    the direction that the appellant and her client appear as required before the IAP
    Adjudicator on January 19. The essence of the order is found at para. 35 of the
    January 15 Direction:

I, therefore, direct
    Ms. Brunning to appear and participate in the closing submissions as directed
    by the IAP Adjudicator on Friday, January 19, 2018. I direct her to advise
    Court Counsel whether she will comply or will refuse to comply with this
    direction by no later than Wednesday, January 17, 2018, 4:00 p.m.

[23]

An
    appeal lies only from the terms of an order and not from the reasons for
    judgment giving rise to the order:
Grand River Enterprises v. Burnham
(2005), 10 C.P.C. (6th) 136, at paras. 9-10 (Ont. C.A.).

[24]

The
    Eastern Administrative Judges comments about counsel are certainly part of the
    reasons. They are not, however, part of the order.

[25]

Fortunately
    from the appellants perspective, she will have an opportunity to challenge in
    this court the merits of the comments made by the Eastern Administrative Judge in
    his January 15 Direction. When the Eastern Administrative Judge released that direction,
    he had pending before him a motion for costs against the appellant personally
    in the proceedings that had led to the January 4 decision. The appellant
    brought a motion claiming that the Eastern Administrative Judge should recuse
    himself from the costs motion on the ground that his comments in the January 15
    Direction gave rise to a reasonable apprehension of bias against the appellant.
    The Eastern Administrative Judge dismissed that motion:
Fontaine v. Canada
    (Attorney General)
, 2018 ONSC 4182. The appellant has appealed to this
    court from that dismissal.

[26]

The
    Eastern Administrative Judge subsequently ordered costs payable by the
    appellant, personally, to the Attorney General of Canada in the amount of
    $25,000: see
Fontaine v. Canada (Attorney General)
, 2018 ONSC 4195.
    The appellant has filed an application for leave to appeal to this court from
    the costs order.

[27]

As
    counsel for the appellant acknowledged in oral argument, the comments made by
    the Eastern Administrative Judge about the appellants conduct in his January
    15 Direction will be front and centre on the appeal from the recusal motion.
    They will also figure in the costs appeal, if leave is granted. The appellant
    will have her opportunity to challenge in this court the fairness of the
    process leading to the January 15 Direction and the merits of the comments made
    by the Eastern Administrative Judge about the appellants conduct.

[28]

For
    the reasons set above, the order made in the January 15 Direction is
    interlocutory and not final. Assuming the appellant has standing to appeal that
    order, her appeal lies, with leave, to the Divisional Court and not to this
    court. The appeal is quashed:
Courts of Justice Act
, R.S.O.1990 c.
    C.43, s. 6(1)(b), s. 19(1)(b).

[29]

Counsel
    for the Attorney General of Canada did not seek costs, and the court made no
    order as to costs.

Released: DD DEC 10 2018

Doherty J.A.

I agree. B.W. Miller
    J.A.

I agree. Fairburn
    J.A.


