



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney
    General), 2021 ONCA 313

DATE: 20210510

DOCKET: M52372 (C69253)

Paciocco 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

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 Womens 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 dAssise, Institut des Soeurs du
    Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de
    Jésus-Marie, Les Soeurs de lAssomption de la Sainte Vierge, Les Soeurs de
    lAssomption de la Saint Vierge de lAlberta, Les Soeurs de la Charité de
    St.-Hyacinthe, Les Oeuvres Oblates de lOntario, Les Résidences Oblates du
    Québec, La Corporation Episcopale Catholique Romaine de la Baie James (The
    Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of
    Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of
    Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des 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 dHudson-The Roman
    Catholic Episcopal Corporation of Hudsons 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. Peters 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 Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal
    Corporation of Keewatin, La Corporation Archiepiscopale Catholique Romaine de
    St. Boniface, Les Missionnaires Oblates Soeurs 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

(Respondents/
Responding Party
)

In the Matter of the Request for Directions

by Dr. Edmund Metatawabin

and by IAP Claimants T-00185, S-20774 and
    S-16753

Pertaining to St. Annes Indian Residential
    School


Requestors


(Appellants/Moving
  Parties)

Proceedings
    under the
Class Proceedings Act
, 1992
, S.O. 1992, c. 6
Michael Swinwood and Fay K. Brunning,
    for the moving parties
Catherine A.
    Coughlan, Brent Thompson and Eve Coppinger, for the responding party
Heard: April 22, 2021 by video
    conference
ENDORSEMENT
OVERVIEW
[1]

The motions before me relate to claims under the
    Independent Assessment Process (the IAP) made against the Attorney General of
    Canada (Canada), the responding party, by former residents of St. Annes Indian
    Residential School (St. Annes IRS) pursuant to the Indian Residential School
    Settlement Agreement (the IRSSA).
[2]

The moving parties include three former residents
    of St. Annes IRS who made claims under the IAP. They contend that at the time
    their matters were resolved, Canada had failed to fulfill its disclosure
    obligations, and still has not done so. In a request for directions (RFD) initiated
    on May 12, 2020 (Metatawabin RFD #2), the moving parties seek a declaration
    that Canada breached previous disclosure orders made on January 14, 2014 and
    June 23, 2015 (the Disclosure Orders). In Metatawabin RFD #2, the moving
    parties also seek an order compelling Canada to revise documentation used in
    their IAP claims within 30 days, so the claimants can determine whether they
    should seek to re-open those claims. Finally, Metatawabin RFD #2 seeks a preservation
    order preventing Canada from destroying documents that pertain to the St.
    Annes IRS IAP claims.
[3]

Dr. Edmund Metatawabin is also a moving party.
    Dr. Metatawabin is a former St. Annes IRS resident and a distinguished
    Indigenous leader who is actively involved in IRSSA matters relating to St.
    Annes IRS. In this matter he has offered to represent the interests of St.
    Annes IRS abuse survivors whose claims may have been adversely affected by allegedly
    unfair disclosure. Many of these survivors are unknown to the moving parties
    because their identities are confidential under the IRSSA.
[4]

The moving parties are pursuing their claims in
    Metatawabin RFD #2 before Glustein J. under the IRSSAs Court Administration
    Protocol (the CAP). Ordinarily, Perell J., the Ontario Supervising Judge for
    IRSSA matters, would be hearing Metatawabin RFD #2. However, Perell J. recused
    himself from Metatawabin RFD #2 due to reasonable apprehension of bias concerns
    arising out of a related proceeding.
[5]

On March 18, 2021, Canada filed an RFD
    requesting that an Independent Special Advisor (ISA) be appointed to conduct
    an independent review of certain St. Annes IRS IAP claims. On April 20, 2021,
    Perell J. granted the request. The moving parties seek to stay that order (the
    Order Under Appeal) pending appeal. The moving parties contend that the Order
    Under Appeal improperly undercuts the Metatawabin RFD #2 proceedings and provides
    for a process not contemplated in the IRSSA. Moreover, the moving parties say that
    the Order Under Appeal was secured in an abusive manner by Canada in an unfair,
    secret proceeding that did not comply with the CAP, and was issued by a judge who
    should have recused himself in light of his earlier recusal from Metatawabin
    RFD #2.
[6]

The moving parties also ask for an interim preservation
    order covering all documents possessed by government officials relating to St.
    Annes IRS IAP claimants.
[7]

Of course, it is not my role as a motion judge
    to resolve the underlying dispute or to comment on the fairness or wisdom of
    decisions that have been taken below. My sole function is to determine whether
    a stay pending appeal is in the interests of justice based on established legal
    standards, and to determine whether I should exercise my discretion to issue
    the requested preservation order.
[8]

For reasons that follow, I am not persuaded it
    is in the interests of justice to stay the Order Under Appeal. Nor, in my view,
    do the interests of justice call for a preservation order. I would therefore
    dismiss the motions before me.
BACKGROUND AND
    MATERIAL FACTS
The IRSSA and
    the IAP
[9]

The IRSSA is the settlement agreement for
    several class actions and civil claims relating to sexual and physical abuse of
    former students at Canadian residential schools. In exchange for forfeiting
    their right to sue, potential claimants have the option of participating in the
    IRSSAs IAP.
[10]

Of importance, Canada has responsibilities
    relating to the creation of the evidentiary record to be used in assessing IAP
    claims. Canada is required to disclose relevant documents in its possession and
    control, and it is obliged to use this information to produce a narrative
    report (Narrative) relating to each residential school, as well as person of
    interest reports (POI Reports) for each claimant for use in the IAP. These
    documents can play an instrumental role in determining the success of IAP
    claims.
[11]

The CAP governs the process for RFDs brought
    under the IRSSA. The CAP is administered by nine Supervising Judges; one from
    each of the affected provincial and territorial jurisdictions. Pursuant to the
    terms of the CAP, two Administrative Judges are selected from among the
    Supervising Judges. Perell J., the Ontario Supervising Judge, is the current Eastern
    Administrative Judge (EAJ), and his order is the Order Under Appeal. I shall
    refer to him as the EAJ in this endorsement. The current Western Administrative
    Judge (WAJ) is the British Columbia Supervising Judge.
[12]

Any party, counsel, or other entity with
    standing may bring an RFD to the Administrative Judges relating to all matters
    that require court orders, directions or consideration during the course of the
    administration of the IRSSA. After receiving an RFD, the EAJ and WAJ must determine
    whether a case conference or a hearing is required. Case conferences may be
    conducted by one or both Administrative Judges. If a hearing is required, the Administrative
    Judges assign the hearing of the RFD to the Supervising Judge from the court
    with jurisdiction over the matter.
[13]

Although all IAP claims have been completed, and
    the IAP ceased operations on March 31, 2021, supervisory courts may review and re-open
    claims where exceptional circumstances are present:
J.W. v. Canada
    (Attorney General)
, 2019 SCC 19, [2019] 2 S.C.R. 224, at para. 27. The
    moving parties take the position that if Canada did breach the Disclosure
    Orders, dispositions and settlement agreements involving St. Annes IRS IAP claimants
    may need to be re-opened, and punitive and aggravated damages may be
    appropriate.
The disclosure
    issues in Metatawabin RFD #2
[14]

The first Disclosure Order at issue in
    Metatawabin RFD #2 was made by the EAJ on January 14, 2014. In it he ordered
    the production of documents relating to an extensive criminal investigation conducted
    by the Ontario Provincial Police into claims of abuse at St. Annes IRS. Canada
    was also ordered to comply with its disclosure obligations relating to other
    relevant, non-privileged documents, and to revise the Narrative and POI Reports
    for St. Annes IRS. This Order led to the disclosure of more than 12,000
    additional documents and to substantial revisions to the Narrative and to some POI
    Reports.
[15]

The second Disclosure Order at issue in
    Metatawabin RFD #2, dated June 23, 2015, was also made by the EAJ. That Order was
    obtained by approximately 50 St. Annes IRS IAP claimants who were dissatisfied
    with Canadas compliance with the January 14, 2014 Disclosure Order. The June 23,
    2015 Disclosure Order directed Canada to revise identified reports to include
    specified categories of information, and to make further particularized
    disclosure.
[16]

The parties disagree as to whether Canada has
    fully complied with the Disclosure Orders; the moving parties contend that Canada
    has not. One of their core complaints is that Canada failed to revise disclosure
    relating to claims that had already been resolved before the Disclosure Orders
    were issued, and that this resulted in unfair settlements affecting an
    estimated 166+ claimants.
[17]

Between 2015 and 2018, numerous RFDs were
    brought before the EAJ seeking further enforcement of the Disclosure Orders. The
    moving parties contend these RFDs were not heard on their merits because the
    EAJ always accepted Canadas preliminary objections. They emphasize that courts
    have a duty to ensure all IAP claimants receive the benefits they bargained for
    when they entered into the IRSSA and forfeited their right to sue, but argue
    that the EAJ has breached this obligation by failing to enforce these orders
    and to re-open claims for fair adjudication.
The EAJs recusal from Metatawabin RFD #2
[18]

Ms. Brunning, in her capacity as counsel
    participating in related proceedings, made critical comments about the EAJs
    response to attempts to enforce the Disclosure Orders. On January 15, 2018, the
    EAJ issued an order in which he criticized Ms. Brunnings conduct and ordered
    costs personally against her: 2018 ONSC 357. In February 2020, the Divisional
    Court set these orders aside, finding that the EAJ should have recused himself
    from making them: 2020 ONSC 1003 (Div. Ct.).
[19]

On May 12, 2020, the moving parties, with Ms.
    Brunning as one of their counsel, filed Metatawabin

RFD #2, once again seeking
    the enforcement of the Disclosure Orders, as well as additional incidental
    relief for individual claimants.
[20]

On June 5, 2020, the EAJ recused himself as Supervising
    Judge in Metatawabin RFD #2: 2020 ONSC 3497. By joint direction, the EAJ
    appointed the WAJ as Supervising Judge to hear Metatawabin RFD #2.
Rouleau J.A.s order dated November 2, 2020
[21]

On November 2, 2020, this court set aside the
    EAJs order appointing the WAJ as Supervising Judge for Metatawabin RFD #2.
    Rouleau J.A. held that para. 5(a) of the CAP required that RFDs involving
    strictly Ontario class members and Ontario institutions were to be directed to
    the Ontario Superior Court of Justice for hearing: 2020 ONCA 688, at para. 42.
    As a result, Rouleau J.A. set aside the EAJs order assigning Metatawabin RFD
    #2 to the WAJ and remitted the matter to the Ontario Superior Court of Justice
    for hearing. Further, Rouleau J.A. directed, at para. 66 of his reasons, that [a]s
    the Ontario Supervising Judge has recused himself, it is up to the Chief
    Justice of the Ontario Superior Court of Justice to assign a different
    Supervising Judge.
Glustein J.s appointment and management of
    Metatawabin RFD #2
[22]

On November 5, 2020, in a letter with the
    reference line RE:
Fontaine v. Canada (Attorney-General)
, the Chief
    Justice of the Ontario Superior Court of Justice appointed Glustein J. to act
    as Supervising Judge in this matter. Metatawabin RFD #2 is now proceeding
    before Glustein J. Canada has filed a motion to dismiss Metatawabin RFD #2,
    alleging abuse of process. Glustein J. has held multiple case conferences attended
    by Canada and the moving parties.
[23]

According to the moving parties, in one such
    conference on March 12, 2021, Glustein J. indicated he could deal with whether
    there was a breach of the Disclosure Orders without having to resolve certain
    outstanding factual issues relating to claimant representation. The moving
    parties say Glustein J. also advised Canada not to play a game of got you
    with the documents. As I understand the moving parties, they interpret the
    former comment as an indication that Glustein J. is poised to decide the
    disclosure issue on its merits, and the latter as a caution to Canada not to take
    a narrow view of its obligation to preserve documents, pending the decision on
    the merits in Metatawabin RFD #2.
Canadas RFD to appoint an ISA
[24]

On March 18, 2021, Canada filed an RFD requesting
    the appointment of an ISA to conduct an independent review of IAP claims
    brought by former students at St. Annes IRS. In this RFD, Canada submitted
    that, despite a success rate of 96.4% for St. Annes IRS IAP claimants,
    extensive negative publicity arising from the heavily litigated disclosure
    dispute is undermining public confidence in the integrity of the IRSSA and the IAP.
[25]

To address this, Canada requested an order that
    would allow for an independent investigation of certain St. Annes IRS IAP claims
    to determine in each case: (1) whether the 2014 disclosure was available in each
    claims adjudication, (2) if not, whether there was a conscious decision by
    counsel to proceed without disclosure, and (3) if not, whether the disclosure would
    have been reasonably likely to have impacted the amount of compensation awarded.
    The order Canada sought had provisions designed to maintain confidentiality and
    respect privacy and solicitor-client privilege.
The March 22, 2021 Assignment Order
[26]

On March 22, 2021, the EAJ and WAJ issued a joint
    direction assigning the EAJ as the Supervising Judge for Canadas RFD (the Assignment
    Order). The Assignment Order provided for the RFD to be heard in writing. It
    also directed court counsel to invite written submissions from,
inter

alia
,
the requestors in Metatawabin RFD #2 (the moving parties) by
    April 7, 2021.
[27]

On April 1, 2021 the moving parties filed a notice
    of appeal of the Assignment Order, seeking the dismissal of that Order and the
    confirmation of Glustein J. as the Ontario Supervising Judge for all RFD matters
    pertaining to St. Annes class members (Notice of Appeal #1).
[28]

The moving parties brought a concurrent motion
    to stay the Assignment Order pending appeal (Motion #1). They also sought a Preservation
    Order requiring Canada to preserve all documents pertaining to St. Annes IRS IAP
    claims. In addition, Motion #1 requested an order expediting the appeal, perhaps
    to be heard by the same panel that issued the November 2, 2020 Reasons and
    Order. This is the motion for which notice was given, and it was scheduled before
    me for an April 22, 2021 hearing.
The Order Under Appeal
[29]

On April 20, 2021, two days before Motion #1 was
    scheduled to be heard, the EAJ issued the Order Under Appeal, after having
    received written submissions from the Assembly of First Nations, as well as the
    IRSSAs Independent Counsel and the Chair of the National Administration
    Committee. The moving parties had also filed written submissions, under
    protest.
[30]

In the Order Under Appeal, the EAJ identified Canadas
    RFD request as urgent, given that the IRSSA was near completion and serious
    allegations have been made about the integrity of [the IAP] and about whether the
    claims of certain Claimants who attended [St. Annes IRS] were administered in
    accordance with the provisions of the IRSSA. He noted that the festering
    grievance [regarding the Disclosure Orders] risks undermining public confidence
    in the integrity of the IAP with respect to St. Annes claims.
[31]

The Order Under Appeal modified the terms of
    Canadas draft order to accommodate certain objections made before the EAJ. The
    EAJ appointed the Hon. Ian Pitfield as ISA to conduct the St. Annes Review.
    In doing so, the EAJ relied on his authority to appoint a referee pursuant to r.
    54 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, 
mutatis

mutandis
. Upon completion of the St. Annes Review, the EAJ ordered
    the ISA to deliver a sealed report of his findings to the court and Canada, but
    directed that Canada would not participate in the process except to facilitate the
    ISAs access to relevant records. At para. 10, the Order Under Appeal set the
    terms of the St. Annes Review as follows:
In the report, the ISA shall make an
    independent determination for each IAP Claimant whose IAP claim was resolved
    (whether by adjudication, settlement, negotiation, or withdrawal)
before
    additional disclosure was made available pursuant to the [Disclosure Orders]
and the ISA shall report to the court the answers to the following questions:
i.

Were the 2014/2015 disclosure documents
    available
for the claims adjudication?
ii.

If not,
could the 2014/2015 disclosure
and use of the documents for the IAP have materially affected the amount of
    compensation paid on the claim? and,
iii.

If
the disclosure
and use of the
    documents could have materially affected the amount of the compensation, what
    additional compensation should have been paid in accordance with the IRSSA?
    [Emphasis added.]
[32]

On April 22, 2021, the day of the motion hearing
    before me, the moving parties filed a notice of appeal of the Order Under
    Appeal (Notice of Appeal #2). In their Notice of Appeal #2, the moving
    parties seek to have the Order Under Appeal set aside, and reiterate their request
    that Glustein J. be confirmed as the Ontario Supervising Judge to determine
    all legal matters pertaining to the 166+ St. Annes IAP claimants whose rights
    are being determined in Metatawabin RFD #2.
The moving parties grounds of appeal
[33]

The grounds of appeal are set out at para. 20 of
    Notice of Appeal #2, but they are suffused with factual claims and argument in
    a repetitive list of points and subpoints. My understanding of the grounds of
    appeal being advanced by the moving parties can fairly be summarized as
    follows:
i.

The EAJ erred by not recusing himself from this
    matter because of reasonable apprehension of bias;
ii.

The EAJ erred by adjudicating Canadas RFD
    because Glustein J. was the Ontario Supervising Judge with sole authority to
    hear all St. Annes IRS IAP matters;
iii.

The EAJ breached rules of natural justice, as the
    Order Under Appeal was made without a public hearing, without evidence, and
    without the knowledge, input, and representation of the St. Annes IRS IAP claimants
    whose rights are affected;
iv.

It was an abuse of process for Canada to bring
    the RFD that led to the Order Under Appeal; and
v.

The Order Under Appeal is in breach of the CAP
    under the IRSSA.
[34]

On April 21, 2021, the moving parties filed a
    Supplementary Notice of Motion as a companion to Motion #1 (Motion #2).
    In Motion #2, the moving parties seek an order staying the Order Under Appeal
    pending their appeal.
THE ISSUES
[35]

Canada has been pragmatic in allowing the
    matters before me to move forward. They took no objection to the late service
    of Motion #2, nor to the fact that Motion #2 was being heard prior to Notice of
    Appeal #2 having been officially filed.
[36]

I will therefore consider the relief requested
    under Motion #1 and Motion #2, subject to two exceptions. First, I will not
    consider the request made in Motion #1 to stay the Assignment Order. During the
    oral hearing before me, the moving parties conceded that this request is now
    moot. Second, in Motion #1 the moving parties asked for an order expediting the
    appeal. No submissions were made in support of that request during the hearing,
    so I will not consider it here.
[37]

There are therefore two issues before me:
(a)   Should the Order Under Appeal, dated April 20, 2021, be stayed
    pending appeal?
(b)   Should a preservation order be issued?
ANALYSIS
A.      THE ORDER
    UNDER APPEAL SHOULD NOT BE STAYED
[38]

The overarching consideration on a motion for a stay
    pending appeal is whether a stay is in the interests of justice
: BTR Global
    Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust,
2011 ONCA
    620, 283 O.A.C. 321, at para. 16;
2257573 Ontario Inc. v. Furney
, 2020
    ONCA 742, at para. 20. This determination is informed by the three factors
    described in
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994]
    1 S.C.R. 311, at p. 334:
(1)     A preliminary assessment must be made of the merits of the
    case to ensure there is a serious question to be determined on the appeal;
(2)     It must be determined whether the moving party would suffer
    irreparable harm if the stay were refused; and
(3)     An assessment must be made as to which of the parties would
    suffer greater harm from the granting or refusal of the stay pending a decision
    on the merits.
[39]

As Laskin J.A. noted in
Circuit World Corp.
    v. Lesperance

(1997), 33 O.R. (3d) 674, at p. 677, these three
    criteria are not watertight compartments and the strength of one may
    compensate for the weakness of another.
[40]

I have undertaken this assessment. As I will
    explain, I am not satisfied that it is in the interests of justice to stay the Order
    Under Appeal.
(1)

A Serious Issue to be Determined on Appeal
[41]

I recognize that the serious issue threshold is
    low and will be satisfied if an appeal is neither frivolous nor vexatious:
Furney
,
    at para. 22. However, my preliminary assessment is that the grounds of appeal
    raised in respect of the Order Under Appeal are likely frivolous for
    jurisdictional reasons. I say this based on my preliminary view that the appeal
    probably should have been brought before the Divisional Court. This militates
    against the seriousness of the issues to be determined, as the absence of
    jurisdiction would mean the appeal is devoid of merit and therefore
    frivolous:
Heidari v. Naghshbandi
, 2020 ONCA 757, 153 O.R. (3d) 756,
    at para. 10;
Henderson v. Henderson
, 2014 ONCA 571, 324 O.A.C. 138, at
    para. 8.
The potential jurisdictional problem
[42]

Pursuant to s. 6(1)(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 (the 
CJA
), an appeal lies to
    this court from a final order of the Superior Court of Justice. Speaking
    generally, if an order is interlocutory, rather than final, this court lacks jurisdiction
    to hear an appeal from that order.
[43]

As Sharpe J.A. observed in
Fontaine v.
    Canada (Attorney General)
, 2018 ONCA 749, at para. 5, a single judge of
    this court has no final authority to determine the issue of jurisdiction.
    However, Sharpe J.A. went on to explain that no stay should be granted in a
    case over which this court lacks jurisdiction, so if a jurisdictional issue arises
    on a stay motion it should be considered. Likewise, in
Fontaine v. Canada
    (Attorney General)
, 2020 CanLII 64770 (Ont. C.A.) (
Fontaine Stay #2
),
    Simmons J.A. held, at para. 14, that a single judge on a stay motion should
    assess whether the order under appeal is interlocutory, or even probably
    interlocutory since such a finding would militate against granting the
    requested stay: see also,
Belton v. Spencer
, 2020 ONCA 623, 58 C.P.C.
    (8th) 16, at paras. 41 and 50.
[44]

Based on my preliminary assessment below, the Order
    Under Appeal is probably interlocutory. As such, I conclude that the serious
    question factor militates against granting the requested stay.
Jurisdiction probably does not arise from
    the recusal appeal
[45]

The moving parties rest their claim that the Order
    Under Appeal is a final order primarily on their position that the EAJs
    failure to recuse himself is a final determination of a substantive issue. In
    support of this submission, they seek to draw an analogy to their successful appeal
    of the EAJs order of June 5, 2020 in which the EAJ purported to assign
    Metatawabin RFD #2 to the WAJ in British Columbia. After rejecting Canadas
    submission that this order was interlocutory, Simmons J.A. issued a stay pending
    appeal of that order and this court ultimately heard the appeal. Simmons J.A. acknowledged
    that it was not her role as a single judge of this court to determine whether
    the court had jurisdiction to entertain the appeal, but reasoned that the June
    5, 2020 order was final because it finally determines a substantive matter 
    the [moving parties] entitlement to have [Metatawabin RFD #2] heard in the
    forum they say is prescribed by the CAP:
Fontaine Stay #2
, at para.
    16.
[46]

In my view, the moving parties analogy to
Fontaine
    Stay #2
is inapt. A panel of this court has already determined, in related
    proceedings, that a judges refusal to recuse themselves is an interlocutory
    matter:
Brunning v. Fontaine
, 2019 ONCA 98, 144 O.R. (3d) 410, at
    paras. 6-11; see also,
Beaver v. Hill
, 2019 ONCA 520, at paras. 14-15.
    These cases support my preliminary view that the EAJs failure to recuse
    himself from hearing Canadas RFD is probably an interlocutory decision
    appealable only with leave to the Divisional Court. However, a preliminary
    assessment of whether jurisdiction is likely to arise from other aspects of the
    Order Under Appeal requires further analysis.
Jurisdiction probably does not arise under
    the traditional
Hendrickson

test
[47]

This court recently affirmed in
Drywall Acoustic
    Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc.
, 2020
    ONCA 375, at para. 16, that the test in
Hendrickson v. Kallio
, [1932]
    O.R. 675 (C.A.), at p. 678, continues to govern in deciding whether an order is
    final or interlocutory. That test is as follows:
The interlocutory order from which there is no
    appeal is an order which does not determine the real matter in dispute between
    the parties  the very subject matter of the litigation, but only some matter
    collateral. It may be final in the sense that it determines the very question
    raised by the application, but it is interlocutory if the merits of the case
    remain to be determined.
[48]

As
Hendrickson

teaches, the mere
    fact that the Order Under Appeal appears to have finally resolved the
    appointment of an ISA and the terms of the St. Annes Review does not make the
    order a final one. MacFarland J.A. confirmed this point in
Waldman v.
    Thomson Reuters Canada Limited
, 2015 ONCA 53, 330 O.A.C. 142, at para. 22,
    noting that if an order were deemed final simply because it disposed finally of
    whatever issue was before the court, the distinction between interlocutory and
    final orders would cease to exist.
[49]

The material question is whether the Order Under
    Appeal finally resolved the real matter in dispute between the parties, meaning
    the very subject matter of the litigation. The real matter in dispute between
    the parties is whether Canada breached the disclosure obligations it owes to
    St. Annes IRS claimants under the IAP. In my view, the Order Under Appeal does
    not resolve that dispute. At most, it provides a procedure for making future
    findings that may bear indirectly upon that dispute. I will explain.
[50]

The EAJ did not make any findings of fact
    relating to disclosure in the Order Under Appeal. Instead, he appointed the ISA
    as a referee in accordance with Rule 54 of the
Rules of Civil Procedure

mutatis

mutandis
 who shall make a report that
    contains his or her findings, conclusions and recommendations.
[51]

Of importance, any reported findings,
    conclusions, or recommendations of a referee under r. 54 have no legal effect
    unless the report is confirmed by the directing judge after a confirmation hearing
    on notice to the parties: rr. 54.07-54.08. Therefore, if the ISAs ultimate findings
    do resolve substantive issues between the parties, those findings would not
    arise from the Order Under Appeal, but instead from the ISAs report, which is
    not yet in existence and which may or may not be confirmed by the EAJ.
[52]

Moreover, pursuant to r. 54.05, the moving
    parties are entitled to challenge the progress of the ISA before he produces
    his report. Further, pursuant to rr. 54.07-54.08, they will be free to oppose any
    findings the ISA eventually makes before those findings have legal effect.
[53]

Not surprisingly,
in Webb v. 3584747 Canada
    Inc.
(2002), 161 O.A.C. 244, (Div. Ct.), a judges order appointing a
    referee pursuant to r. 54 to determine the claims of certain class members in a
    class action was characterized as interlocutory: at para. 1.
[54]

In light of the foregoing, I think that
    jurisdiction probably does not arise in this case under the traditional
Hendrickson
test.
Jurisdiction probably
    does not arise even under a modified approach
[55]

For the sake of completeness, I will consider this
    courts decision in
Parsons v. Ontario
, 2015 ONCA 158, 125 O.R. (3d)
    168, revd on other grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. In
Parsons
,
    at para. 44, LaForme J.A. (for the majority) took a somewhat modified
    approach in distinguishing between final and interlocutory orders within a
    national class action where the substantive merits and defences had already
    been determined by a judicially-approved settlement agreement.
[56]

Applying this somewhat modified approach,
    LaForme J.A. characterized as final an order determining that supervisory
    judges from different provinces could sit together to hear concurrent motions
    for a proposed protocol extending the first claims deadline in the settlement agreement.
    LaForme J.A. found that the essential character of the RFD leading to the
    order was akin to an application to interpret a statute or contract under r.
    14.05(3)(d). By analogy, LaForme J.A. held that the order was therefore final
    rather than interlocutory.
[57]

Juriansz J.A. issued a strong dissent. He
    rejected the modified approach endorsed by LaForme J.A., saying it would be confusing.
    In Juriansz J.A.s view, even where substantive rights have already been
    settled in a class action and no claims or defences remain to be tried, the traditional
Hendrickson

test should still be applied:
Parsons
, at
    para. 208. For Juriansz J.A., the real issue in dispute was whether the court
    should extend the deadline for filing first claims. He concluded that this issue
    was not finally resolved by determining the forum in which the court could hear
    the underlying motion. Therefore, according to Juriansz J.A., the order under
    appeal was interlocutory and this court did not have jurisdiction.
[58]

I need not resolve whether the approach taken by
    LaForme J.A. is appropriate because applying that approach would not alter my preliminary
    assessment of the Order Under Appeal. Of importance, in
Parsons
, at
    para. 53, LaForme J.A. cautioned that not all appeals from orders of
    supervisory judges under a national class action settlement agreement are
    final. The proper characterization will turn on the specific order under appeal.
[59]

In my view, even applying LaForme J.A.s
    somewhat modified approach, the Order Under Appeal is probably interlocutory. Assuming,
    without deciding, that Canadas RFD may be characterized as analogous to an
    application under r. 14.05, the Order Under Appeal is distinguishable from the
    order in
Parsons
in at least two material ways
.
[60]

First, the Order Under Appeal did not determine
    the forum in which any substantive issues between Canada and the moving parties
    would be resolved. The substantive disclosure issues between the parties are
    being litigated in Metatawabin RFD #2 before Glustein J. The Order Under Appeal
    does nothing to prevent that litigation from continuing.
[61]

Second, the Order Under Appeal is based on r. 54,
    providing a statutory basis on which the moving parties may challenge the St.
    Annes Review as it progresses, and oppose the ISAs substantive findings,
    conclusions, and recommendations at a future hearing before they take effect.
[62]

In my view, even using the somewhat modified
    approach that LaForme J.A. applied in
Parsons
, there is nothing about
    the Order Under Appeal that could support the conclusion that it is a final
    order.
Conclusion on the seriousness of the issue to be
    determined on appeal
[63]

In my preliminary view, the Order Under Appeal
    is probably interlocutory. If I am correct, this would make the moving parties
    appeal filed in this court meritless:
Henderson
,
at para. 8. Regardless
    of the substantive merits of the grounds of appeal advanced by the moving
    parties, this probable absence of jurisdiction undermines the seriousness of
    the issues to be determined. As such, I find that the first
RJR-MacDonald

factor militates against granting the stay.
[64]

However, even if I am wrong and the Order Under
    Appeal is final such that there are viable serious issues to be determined on
    appeal, this alone would not entitle the moving parties to a stay pending
    appeal. They must ultimately persuade me that a stay is in the interests of
    justice by showing they will suffer irreparable harm if a stay is not granted
    and that the balance of convenience weighs in their favour.
[65]

As I will explain, I am not persuaded that the
    remaining
RJR-MacDonald

factors favour granting the requested
    stay pending appeal.
(2)

Irreparable Harm
[66]

When framed properly, irreparable harm arguments
    should focus on the adverse effects that are likely to arise if the order under
    appeal is not stayed pending appeal:
Ducharme v. Hudson
, 2021 ONCA
    151, at para. 20. Many of the moving parties irreparable harm arguments focused
    instead on allegations about the harm caused by the Order Under Appeal itself,
    including that it was obtained through an unfair process from a judge who did not
    properly enforce the Disclosure Orders. I will not consider those submissions
    further.
[67]

Only three of the submissions made before me relate
    to harm that could be caused by failing to stay the Order Under Appeal pending
    appeal:
(i)      The St. Annes Review could produce results that are
    inconsistent with the ultimate resolution of Metatawabin RFD #2;
(ii)      Access to justice will be denied to the St. Annes IRS IAP
    claimants potentially affected by Metatawabin RFD #2; and
(iii)     The St. Annes Review will create duplicative costs.
[68]

I will address each submission in turn.
(i) Inconsistent findings will not result from the Order
    Under Appeal
[69]

Without question, the risk of inconsistent
    findings or results from parallel proceedings can cause irreparable harm to
    parties and to the administration of justice:
Fontaine v. Canada (Attorney
    General)
, 2018 ONCA 832, at para. 15.
[70]

However, in my view, there is no realistic risk
    of inconsistent findings between Metatawabin RFD #2 and the Order Under Appeal.
    As I have explained, no findings were made in the Order Under Appeal relating
    to disclosure. The risk of inconsistent findings would arise, if at all, from
    the ISAs report, which may or may not take legal effect if confirmed at some
    later date. In other words, at this stage, an assessment of whether
    inconsistent legal determinations might arise from the St. Annes Review would
    be purely speculative.
[71]

Indeed, there is no evidence before me indicating
    a realistic risk that the ISA himself could make findings that are inconsistent
    with those that may be made in Metatawabin RFD #2. Metatawabin RFD #2 is
    concerned with whether Canada breached the Disclosure Orders. Its focus is on
    the disclosure that
has not been made
, and whether Canada failed to
    revise POI Reports contrary to the Disclosure Orders
after
those Disclosure
    Orders were issued in 2014-2015. As revealed in the terms of the St. Annes
    Review set out at para. 10 of the Order Under Appeal, reproduced at para. 31 above,
    the ISAs mandate is to consider whether the disclosure that
has been made
pursuant to the Disclosure Orders was available during IAP claim adjudications
    that occurred
before
the Disclosure Orders were issued in 2014-2015.
(ii) Access to
    justice will not be denied to the St. Annes IRS IAP claimants
[72]

In the Assignment Order, the EAJ was assigned to
    decide Canadas RFD requesting the appointment of an ISA. In support of their
    motion to stay the Assignment Order, the moving parties argued that unless that
    Order was stayed pending appeal, thereby preventing the EAJ from deciding
    Canadas RFD, access to justice for the 166+ St. Annes Claimants, in the [Metatawabin
    RFD #2] proceedings before Glustein J., will be denied.
[73]

This irreparable harm argument is obviously
    linked to the moving parties contention in their Notice of Appeal #1 that
    Canadas RFD was brought to frustrate the Metatawabin RFD #2 hearing that is
    currently underway before Glustein J. Assuming the moving parties rely on this
    argument in support of Motion #2, I do not accept it.
[74]

The Order Under Appeal does not purport to stay
    or adjourn the Metatawabin RFD #2 hearing, nor does it purport to direct anyone
    to discontinue those proceedings. Nor, for the reasons I have given, does the
    Order Under Appeal present a realistic risk of inconsistent findings that could
    compromise the ultimate decision on the merits in Metatawabin RFD #2. Finally,
    the Order Under Appeal does not appear to jeopardize any benefits that may be obtained
    by the moving parties in Metatawabin RFD #2.
[75]

To the contrary, the ISAs mandate is to
    determine whether additional compensation should have been paid to certain St.
    Annes IRS IAP claimants. Although the Order Under Appeal does not provide a
    specific mechanism for rectifying underpayment, it is evident that the Order could
    lead to additional payments being made to certain St. Annes claimants.  It is
    difficult to characterize the possibility of additional compensation to
    claimants as irreparable harm.
(iii) There is no
    risk of duplicative costs
[76]

Since the Order Under Appeal does not address
    the same issues as Metatawabin RFD #2, any costs that IAP claimants may incur
    in relation to the St. Annes Review would not be duplicative.
Conclusion on
    irreparable harm
[77]

Accordingly, the moving parties have not
    satisfied me that irremediable harm will arise if the Order Under Appeal is not
    stayed.
(3)

The Balance of Convenience
[78]

I have identified no irreparable harm to the
    moving parties. Nor has any other harm been demonstrated that could support
    their view that the balance of convenience favours granting a stay pending
    appeal.
[79]

In contrast, in my view there is a risk of harm
    to Canada if a stay is ordered. The St. Annes Review would be delayed,
    postponing Canadas ambition to reinforce public confidence in the IRSSA by
    obtaining a full and timely claims review. However, I am not persuaded that
    this risk is pressing because the unfairness concerns underlying the St. Annes
    Review are not apt to be answered until all related proceedings, including Metatawabin
    RFD #2 and the appeal in this matter, are concluded.
[80]

Suffice it to say that, in my view, the balance
    of convenience does not favour a stay pending appeal.
(4)

Conclusion on the Stay Motion
[81]

Given the probable jurisdictional issues I have
    identified, in my view there is no serious issue to be determined on appeal to
    this court. Even if there were, I have not found any irreparable harm if a stay
    pending appeal is not ordered, and the balance of convenience does not favour a
    stay.
[82]

Accordingly, I conclude it is not in the
    interests of justice to stay the Order Under Appeal.
B.      A
    PRESERVATION ORDER IS NOT WARRANTED
[83]

The Order Under Appeal does not address the
    preservation of documents, nor does the Assignment Order. There is therefore no
    issue being appealed that relates directly to the preservation of documents. The
    moving parties nonetheless request that I make a preservation order. The scope
    of the relief sought is set out in a draft order filed with Motion #1. If granted,
    in addition to incidental relief, that order would require Canada to preserve
    the following:
Every document  that [is] or [has] been in
    the possession of government officials, which document in any way pertains to
    St. Annes IAP claims adjudicated under the IRSSA and/or to Requests for
    Directions and/or civil actions related thereto, unless and until further Order
    of the Ontario Superior Court of Justice.
[84]

The moving parties cite no authority to support
    the preservation order they request. The Crown contends that I have no
    jurisdiction to make that order. I do not entirely agree. Section 134(2) of the
CJA
authorizes a single judge of this court to make any interim
    order considered just to prevent prejudice to a party pending appeal:
Sub-Prime
    Mortgage Corporation v. Kaweesa
, 2021 ONCA 215, at paras. 44-46. The moving
    parties are concerned with the prejudice that could arise if documents required
    to pursue re-opened IAP claims are destroyed before those claims are re-opened.
    The focus of their concern is a sunset order that was issued on May 29, 2020 permitting
    Canada to destroy documents in anticipation of the March 31, 2021 deadline for the
    IAP to cease operations (the Sunset Order). The documents were to be destroyed
    to protect the privacy of IAP claimants.
[85]

In response to a separate motion brought by the
    moving parties, on February 3, 2021 the WAJ varied the Sunset Order to require
    Canada to preserve documentation relating to St. Annes IRS IAP claims (the
    Sunset Variation Order). The moving parties contend that the Sunset Variation
    Order does not cover all the documents that may be relevant to St. Annes IRS IAP
    claims implicated in Metatawabin RFD #2. They argue that the preservation order
    they seek is urgently required to prevent the litigation related to this appeal
    from being undermined by the destruction of documents.
[86]

Although I do have jurisdiction to make the
    requested interim preservation order pursuant to
CJA

s. 134(2),
    in my view it is not in the interests of justice to do so.
[87]

First, I have concerns about judge shopping and
    duplicative proceedings. The moving parties have not appealed the WAJs Sunset
    Variation Order. On March 18, 2021, the moving parties amended Metatawabin RFD
    #2 to include a request for an order directing Canada not to destroy any IAP
    documents. Therefore, that issue is now before Glustein J. This reduces any
    potential urgency or risk of irreparable harm that may have militated in favour
    of granting the requested preservation order in the interests of justice.
[88]

Second, this requested relief engages complex
    issues relating to the risks associated with preserving highly confidential
    documents. I am not satisfied that all considerations that should bear on the
    preservation order sought by the moving parties were fully argued before me.
[89]

Third, I am not satisfied that the preservation order
    is necessary to prevent prejudice to the moving parties in the context of their
    appeal. On March 23, 2021, Canada advised that it would seek an order
    permitting it to preserve all St. Annes IRS documents pending the completion
    of the St. Annes Review if court counsel, Mr. Gover, instructed Canada to do
    so. Canada also undertook to preserve those documents from destruction until
    the RFD is returned. The next day, Mr. Gover advised the parties that Canadas
    undertaking was satisfactory to the Courts and no formal order was necessary.
    Even though Canadas RFD has already been returned and the Order Under Appeal has
    been rendered, counsel for Canada affirmed before me that Canadas undertaking
    to the Ontario Superior Court of Justice was deemed sufficient for the purpose
    of preserving the documents pending the outcome of these matters.
[90]

It is therefore not in the interests of justice
    for me to make the interim preservation order requested by the moving parties.
DISPOSITION
[91]

The motions for a stay pending appeal of the
    Order Under Appeal and for an interim preservation order are dismissed.
[92]

If Canada, the responding party, wishes to pursue
    a costs order, it may provide submissions in writing, not to exceed 3 pages,
    accompanied by a bill of costs within 10 court days of the receipt of this
    decision. The moving parties may respond and make costs submissions in writing,
    not to exceed 3 pages, accompanied by a bill of costs, within 5 court days of
    being served with Canadas costs materials.
David
    M. Paciocco J.A.