



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication on the
    name of claimant M.F. (lAP file no. E-5442-1O-F-13421); and

An order sealing documents pursuant to s.
    137(2) of the
Courts of Justice Act
. This section of the
Courts of
    Justice Act
provides that:

(2)
A court
    may order that any document filed in a civil proceeding before it be treated as
    confidential, sealed and not form part of the public record.




COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2017 ONCA
    26

DATE: 20170116

DOCKET: C62519

Strathy C.J.O., Hoy A.C.J.O. and Sharpe J.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 Caibaiosai-Gidmark, Michael Carpan,
    Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor,
    James Fontaine in his personal capacity and in his capacity as the executor of
    the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva
    Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak,
    Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley
    Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney
    Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward
    Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs (Respondents)

and

The Attorney General
    of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican
    Church of Canada, The United Church of Canada, The Board of Home Missions of
    the United Church of Canada, The Womens Missionary Society of the Presbyterian
    Church, The Baptist Church in Canada, Board of Home Missions and Social
    Services of the Presbyterian Church in Bay, The Canada Impact North Ministries
    of the Company for the Propagation of the Gospel in New England (also known as
    The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod
    of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The
    Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The
    Missionary Society of the Anglican Church of Canada, The Missionary Society of

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

Defendants (Appellants)

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

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

David Schulze and Marie-Eve Dumont, for the respondent,
    M.F.

Peter Grant and K. Williams, for the respondent,
    Independent Counsel

Catherine Boies Parker, for the intervener, The Chief
    Adjudicator

Heard: December 5-6, 2016

On appeal from the judgment of
    Mr. Justice Paul M. Perell of the Ontario Superior Court of Justice, sitting as
    the Eastern Administrative Judge for the Indian Residential School Settlement
    Agreement, dated July 5, 2016, with reasons reported at 2016 ONSC 4326.

Sharpe J.A.:

[1]

The
Indian Residential School Settlement Agreement
(the IRSSA) is a national settlement resolving various class action
    proceedings against the Attorney General of Canada
(Canada)
and
    other parties implicated in the deplorable history of physical, sexual and
    psychological abuse suffered by aboriginal children at residential schools.
    IRSSA provides for compensation to the victims of residential schools. A Common
    Experience Payment is available immediately to all eligible class members who
    had resided in a residential school. An
Independent Assessment
    Process (IAP), a specially designed inquisitorial process involving trained adjudicators,
    was established to provide compensation to claimants who could show that they
    had suffered serious physical or sexual abuse or psychological harm at a
    residential school.

[2]

The central issue on this appeal is the availability of recourse
    to the courts with respect to the determination of claims made
under the IAP.

[3]

The respondent, M.F. made a claim pursuant to the
    IAP. His claim was rejected by an Adjudicator, by a Review Adjudicator and by a
    Re-Review Adjudicator, on the ground that he was not an eligible claimant. He
    brought a Request for Directions (RFD) before the judge designated under the
    IRSSAs Court Administration Protocol as the Eastern Administrative Judge,
    challenging the rejection of his claim.

[4]

Shortly before the RFD was heard, Canada
    discovered and disclosed two documents that had not been considered by the IAP Adjudicators
    and that arguably demonstrated that M.F. was an eligible claimant. Canada was
    prepared to consent to an order remitting M.F.s claim to the Chief Adjudicator
    for reconsideration. M.F. refused to consent and the RFD proceeded.

[5]

The administrative judge held that he had the
    authority to review the decisions of the IAP Adjudicators. He engaged in a
    detailed review of the record and the evidence and concluded that, quite apart
    from the newly discovered evidence, M.F. was entitled to compensation. He
    refused to remit the claim back to the Chief Adjudicator for reconsideration,
    and found that he was entitled to award M.F. compensation, to quantify the
    award, and determine the appropriate quantum of M.F.s IAP costs.

[6]

On appeal, Canada submits that the
    administrative judge erred by assuming jurisdiction over M.F.s claim without
    applying the proper threshold for judicial recourse under the IAP, by
    interfering with the factual findings of the IAP Adjudicators, and by ordering
    and quantifying the compensation and costs to which M.F. is entitled.

[7]

M.F. cross-appeals, asking this court to declare
    that Canada breached its document disclosure obligations under the IAP.

[8]

At the conclusion of oral argument, the court
    indicated that for reasons to follow, Canadas appeal was allowed, the
    cross-appeal was dismissed, and that the matter was remitted to the Chief
    Adjudicator for reconsideration.

M.F.s Claim

[9]

M.F. was born on May 12, 1950. He was not a resident or a student at an Indian
    Residential School (an IRS). His aunt worked as a cook at the Spanish Boys
    IRS in Spanish, Ontario. M.F. stated that when he was about 10 years old, in
    about 1960, he sometimes visited his aunt at the Spanish Boys IRS with his
    cousin after school to have milk and cookies before going home.

[10]

In his claim, M.F. stated that he was altar boy at the church on the
    property of the Spanish Boys IRS between 1960 and 1962, when he was between
    the ages of 10 and 12. While working as an altar boy, he was sexually assaulted
    in the sacristy of the church by a priest named Father B. He met Father B. at
    the Spanish Boys IRS when he visited his aunt. Father B. recruited and trained
    M.F. to become an altar boy. At his initial IAP hearing, M.F. testified that he
    thought he may have been 8 years old at the time of the abuse, placing it
    sometime after May 12, 1958. The Spanish Boys IRS closed on June 30, 1958.
    There was also some suggestion at the hearing that the abuse might have
    occurred in relation to the Spanish Girls IRS, which had used the church of
    the Boys IRS after the Boys IRS had closed.

[11]

IAP documents revealed that M.F.s aunt was employed as a cook at the Spanish
    Boys IRS from 1951 until 1957. Father B appeared on staff lists for the Spanish
    Boys IRS for December 1957 and June 30, 1958 as living at the school, but not
    having any duties.

[12]

M.F. brought his claim in January 2012, at the age of 61.

[13]

Claimants, like M.F., who were not IRS students or residents, may claim
    compensation pursuant to the IAP for physical or sexual abuse in certain
    circumstances. To succeed as a non-resident claimant, a claimant such as M.F.
    has to show that: (1) the perpetrator was an adult employee of the government
    or church entity that operated the IRS; (2) the perpetrator was lawfully on the
    premises of the IRS; (3) the claimant was under the age of 21 at the time of
    the assault; (4) an adult employee of the government or church entity gave the
    claimant permission to be on the premises of the IRS for the purpose of taking
    part in school activities; and (5) the assault arose from or was connected with
    the operation of the school.

The IAP Adjudication

[14]

The IAP is a contractual component of the IRSSA that provides for the
    post-class litigation assessment of the individual claims of class members. The
    IAP consists of three levels of adjudication under the supervision of the Chief
    Adjudicator. Adjudicators use an inquisitorial model. Only parties may call
    witnesses or produce evidence, but Adjudicators manage hearings, question all
    witnesses, and test evidence through cross-examination. The process was
    described by Brown J., the Western Administrative Judge, in
Fontaine v.
    Canada (Attorney General),
2012 BCSC 839, at paras 29-30, as follows:

The hearings are to be inquisitorial in nature and the process
    is designed to minimize further harm to claimants. The adjudicator presiding
    over the hearing is charged with asking questions to elicit the testimony of
    claimants. Counsel for the parties may suggest questions or areas to
    explore to the adjudicator but they do not question claimants directly.

The hearings are meant to be considerate of the claimants
    comfort and wellbeing but they also serve an adjudicative purpose where
    evidence and credibility are tested to ensure that legitimate claims are
    compensated and false claims are weeded out.

[15]

The IAP empowers Adjudicators to make binding findings on credibility,
    liability, and compensation within defined standards. Claimants must meet the
    civil standard of proof on a balance of probabilities to show an entitlement to
    compensation. Adjudicators are required to issue decisions outlining key
    factual findings and their rationale for finding or not finding compensability
    within the IAP, and for the compensation assessed, if any.

The Adjudicators Reasons

[16]

The Adjudicator found M.F.s testimony credible and concluded that he had
    suffered the abuse he described. However, the Adjudicator found that M.F. had
    not established on a balance of probabilities that he met the IAP test for
    non-resident/non-student claimants.

[17]

She noted that M.F. testified that he was abused for a period of two
    years, from the ages of about 10 to 12, when he had been an altar boy. That
    would place the abuse after the date in 1958 when the school closed and after
    Father B.s employment at the IRS had terminated. Even if she accepted that the
    abuse occurred when M.F. was 8 years old, the school closed in June 1958, one
    month after M.F.s 8
th
birthday, making it unlikely that M.F. had
    been recruited, trained as an altar boy and sexually assaulted before the
    school closed. There was no evidence that Father B. was employed by the girls
    school, the alternate theory advanced by M.F. to explain how the abuse may have
    occurred in connection with an IRS after the closure of the boys school. Even
    if Father B. had given M.F. permission to be on the premises to receive altar
    boy training, given the probable time when this training likely took place, it
    was likely after the school closed.

[18]

The Adjudicator concluded that the abuse did not arise from and was not
    connected to the operation of the Spanish Boys IRS.

[19]

M.F. takes issue with the following passage in the Adjudicators reasons,
    in which she relied on extra-curial knowledge regarding the age at which M.F.
    could have served as an altar boy:

It is my understanding that standard practice is that a boy
    cannot serve as an altar boy until he is confirmed in the Catholic Church.
    Confirmation usually takes place when a boy turns 8 years of age. If [M.F.] was
    confirmed at age 8 (May, 1958), then he was confirmed in the year the Spanish
    Boys school closed that June. It is highly unlikely that in the time between
    his 8
th
birthday and the time the school closed, that he was able to
    be confirmed and trained to be an altar boy.

[20]

The IAP allows Adjudicators to use extra-curial knowledge to make
    decisions, including background or personal knowledge of the IRS system and the
    effects of child abuse. They may carry forward information from hearing to
    hearing, such as information about the
modus operandi
of alleged
    perpetrators, conditions at a particular school, or past credibility findings.
    However, such extra-curial knowledge cannot be relied on as an independent
    basis for their conclusions of fact.


Review and re-review

[21]

If a claimant is dissatisfied with the Adjudicators decision, the IAP
    provides that he or she may ask for a review by another Adjudicator, and if
    dissatisfied with the review, for a further review, referred to by the parties
    as a re-review.

[22]

The review and re-review of Adjudicators decisions is governed by s.
    III (l)  which provides as follows:

(i)

For cases within the standard or
    complex track, any party may ask the Chief Adjudicator or designate to
    determine whether an adjudicators, or reviewing adjudicators, decision
    properly applied the IAP Model to the facts as found by the adjudicator, and if
    not, to correct the decision, and the Chief Adjudicator or designate may do so.

(ii)

In both the standard and the
    complex issues tracks, Claimants may require that a second adjudicator review a
    decision to determine whether it contains a palpable and overriding error.

(iii)



(iv)

If a palpable and overriding
    error is found, the reviewing adjudicator may substitute their own decision or
    order a new hearing.


The Review Adjudicators Reasons

[23]

M.F. sought review. The Review Adjudicator upheld the Adjudicators
    decision. Although M.F. had not specifically raised palpable and overriding
    error as a ground of review, the Review Adjudicator considered it.

[24]

The Review Adjudicator cited
Housen v. Nikolaisen
, 2002 SCC 33,
    [2002] 2 S.C.R. 235, at para. 23, and
Waxman v. Waxman
(2004), 186
    O.A.C. 201 (C.A.), at paras. 296-297, leave to appeal refused, [2004] S.C.C.A.
    No. 291, for the proposition that a palpable and overriding error is one that
is
    plainly seen
 (emphasis in original). She also cited
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, for the proposition that the
    Adjudicators factual findings should not be disturbed if her reasoning path
    was clear and her outcome fell within a range of reasonable alternatives.

[25]

The Review Adjudicator concluded that the Adjudicator did not commit a
    palpable and overriding error in holding that M.F. had failed to demonstrate on
    a balance of probabilities that the abuse he suffered occurred while the
    Spanish Boys IRS was in operation. The Adjudicator had taken into account
    M.F.s birth date (May 12, 1950), his claim that he was an altar boy in the
    period 1960-1962, that according to M.F.s own testimony, it takes from a
    couple of weeks to a month to become an altar boy, that M.F. was abused after
    he became an altar boy, and that the Spanish Boys IRS closed on June 30, 1958.
    The Review Adjudicator concluded that the Adjudicators decision fell within a
    range of reasonable outcomes, and was supported by the facts and reasonable
    inferences.

Re-Review Adjudicators Reasons

[26]

M.F. sought re-review and submitted that the Adjudicator committed a
    palpable and overriding error. M.F. argued that she should have found that as
    M.F. was invited onto the premises of the IRS by his aunt, and as his aunt and
    Father B. were not on the premises after the IRS closed, then M.F. must have
    been abused before the IRS closed.

[27]

The Re-Review Adjudicator ruled that he had no authority to review the
    Adjudicators decision for factual error, and that he was restricted to
    considering whether the Review Adjudicator and the Adjudicator had correctly
    applied the IAP framework.

[28]

M.F. once again raised the argument that the abuse could have occurred
    in relation to the use of the chapel at the boys school by the residents of
    the girls school after the boys school had closed. He argued that the
    Adjudicator had failed to take judicial notice of the fact that the residents
    of the girls school would be expected to attend mass performed by a priest. The
    Re-Review Adjudicator dismissed this argument, pointing out that M.F. had
    testified that he was not sure whether he had seen any residential school
    students at the masses when he served as altar boy.

[29]

M.F. submitted for the first time on re-review that the Adjudicator had
    erroneously relied on extra-curial knowledge of the age at which a Catholic boy
    may become an altar boy.

[30]

The Re-Review Adjudicator agreed with M.F. that the age at which a boy
    may serve as an altar boy in the Catholic Church is not obvious, that it was
    ill-advised for the Adjudicator to rely on her personal knowledge, and that
    the Adjudicator may have been wrong as to the age. However, the IAP only
    prevents adjudicators from relying on extra-curial knowledge as an independent
    basis for their conclusions of fact. The Re-Review Adjudicator concluded that
    the Adjudicators finding that M.F. had not established on a balance of
    probabilities that the abuse occurred prior to the closure of the IRS was well
    supported by other facts and evidence, and that it was not independently based
    on her use of extra-curial knowledge. The Re-Review Adjudicator concluded,
    accordingly, that the Adjudicator had not failed to apply or misapplied the IAP
    model.

M.F.s Request for Directions

[31]

M.F. brought a RFD asking for a declaration of his entitlement to
    compensation at a specified level, and for declarations as to the standard of
    review which should be applied by Review and Re-Review Adjudicators.
    Independent Counsel, an IRSSA entity, supported M.F.s position.

Newly discovered evidence

[32]

The IAP imposes an obligation on the Government of Canada to search for
    and collect relevant documents and provide a report setting out the dates a
    claimant attended an IRS. Canada must provide a Person of Interest or POI
    Report detailing information about alleged perpetrators of abuse, including
    their jobs at the IRS and the dates they worked or attended there. Canada must
    also gather documents about the IRS that the claimant attended and provide the
    claimant with an IRS School Narrative summarizing those documents. The
    claimant is entitled to request copies of documents located by Canada.

[33]

When preparing for the RFD, Canada found documents that had been listed
    as source documents in the POI Report and the IRS School Narrative created
    pursuant to M.F.s claim, but ignored at the IAP hearing. The first new
    document was a copy of a diary referenced in the POI Report. The second was an
    excerpt from the Dictionary of Jesuit Biography referenced in the IRS school
    Narrative. M.F. had not requested copies of either document, nor was either
    document requested by or provided to the Adjudicator.

[34]

Canada provided copies of these documents to M.F. Initially Father B.s
    name was improperly redacted in the relevant portion of the diary. Canada
    agreed to provide an unredacted copy. These documents showed that Father B. had
    left Spanish, Ontario for Winnipeg the day after the IRS closed, never to
    return. It is common ground that these documents could have affected the
    outcome of M.F.s claim, as they undermined the Adjudicators finding that the
    abuse of M.F. by Father B. probably occurred after the IRS closed.

[35]

Canada took the position that M.F.s claim should be remitted to the
    Chief Adjudicator for reconsideration in the light of the documents that had
    been revealed and that given that concession, the RFD was moot. M.F. resisted
    having the matter remitted for reconsideration, and insisted that the RFD
    should proceed.

The Administrative Judges Reasons

Jurisdiction

[36]

The administrative judge held, at paras. 34-41, that he had four sources
    of jurisdiction: (1) the courts jurisdiction over the administration of a
    class action settlement; (2) the courts plenary jurisdiction from
s. 12
of the
Class Proceedings Act, 1992
;
    (3) the courts jurisdiction derived from the IRSSA, which includes its
    jurisdiction to interpret and enforce contracts and its own orders, including
    its approval and implementation orders of the IRSSA; and (4) the courts
    general curial jurisdiction with respect to matters arising from the IAP. As
    authority for the courts general curial jurisdiction, the administrative
    judge cited this courts decision in
Fontaine v. Duboff Edwards Haight
    & Schachter
, 2012 ONCA 471, 111 O.R. (3d) 461. As I will explain
    below, Canada takes serious issue with the administrative judges reading of
Schachter.


Mootness

[37]

The administrative judge held that M.F.s RFD should be considered on
    its merits despite its purported mootness, as it raised significant issues
    respecting the proper interpretation of the review provisions in the IAP
    framework, as well as respecting the courts jurisdiction to fashion remedies
    when the IAP adjudication produces a patent miscarriage of justice.

Canadas disclosure obligations

[38]

The administrative judge rejected M.F.s contention that Canada had
    breached its IAP disclosure obligations by failing to give the Adjudicator the
    documents disclosing Father B.s departure from Spanish after the Spanish Boys
    IRS closed.

[39]

Canada had referred to the documents in the IRS School Narrative and POI
    Report. Those reports had accurately reported what the documents said about when
    Spanish Boys IRS had closed, and about the dates when Father B. was at the
    school, although they had not reported that Father B. had left Spanish the day
    after the IRS closed. The documents were identified and available. M.F. could
    have obtained copies and ensured that the Adjudicator had them, but he did not
    do so. The Adjudicator could have examined the documents herself. The erroneous
    redaction of Father Bs name in the diary did not breach Canadas IAP
    disclosure obligation because the Adjudicator had not read the diary and M.F. had
    not requested it.

Review and Re-Review

[40]

The administrative judge found, at paras. 64-65, that the Re-Review
    Adjudicator erred in his interpretation of the review provisions of the IAP. The
    Re-Review Adjudicator had restricted his review to whether the Review
    Adjudicator had properly applied the IAP model to the facts as found by the
    Adjudicator. In the administrative judges opinion, the Re-Review Adjudicator
    was supposed to review the decisions of both the Adjudicator and the Re-Review
    Adjudicator.

[41]

The administrative judge rejected the Re-Review Adjudicators view that
    the IAP did not permit him to review the decisions of the Adjudicator or the
    Review Adjudicator for palpable and overriding errors as a dangerous over-simplification:
    para. 66. The administrative judge found that with respect to the present
    claim, review of the first two Adjudicators decisions for a correct
    application of the IAP framework was inseparable from review of the facts found
    by the Adjudicator.

[42]

The administrative judge ruled that the Re-Review Adjudicator erred by
    concluding that the Adjudicator had not used extra-curricular knowledge as an
    independent basis for her findings of facts. The administration judge stated,
    at para. 70, once the Adjudicators speculation is excised from the case,
    there is no basis to conclude that M.F. had failed to prove on a balance of
    probabilities that he was assaulted before the school closed.

[43]

The administrative judge implicitly exercised the error-correcting jurisdiction
    of an appellate court by identifying, at para. 71, what he described as an
    inconsistent, discordant, and with respect, perverse finding of fact regarding
    the timing of the abuse alleged in M.F.s claim. The Adjudicator had found that
    M.F. had been sexually assaulted and, in the administrative judges view, there
    was no evidence indicating that the assault occurred after the IRS closed. It
    was, therefore, a palpable and overriding error for the Adjudicator to conclude
    that M.F. had not met the standard of proof for entitlement to IAP
    compensation, quite apart from the impact of the newly discovered evidence. Once
    he had identified that purported error, the administrative judge assumed the
    role of a trier of fact, re-weighed the evidence and concluded that M.F. was
    entitled to compensation.

[44]

The administrative judge went on to hold that even if the Re-Review
    Adjudicator was only required to review the Review Adjudicators decision, he
    erred in affirming that decision because the Review Adjudicator failed to apply
    the IAP framework and correct the palpable and overriding error made by the
    Adjudicator: para. 72. Moreover, the Review Adjudicator did not articulate the
    correct test for what constitutes a palpable and overriding error. She relied
    on
Dunsmuir
to hold that she had to defer to the Adjudicator if the
    Adjudicators decision was reasonable, but
Dunsmuir
[is not] relevant
    to the exercise of a Review Adjudicators jurisdiction to review decisions of
    Adjudicators: para. 76.

Remedy

[45]

The administrative judge rejected Canadas position that a rehearing of
    M.F.s claim should be ordered. He agreed that such a remedy was available but
    stated that the alternatives would be to decide the IAP claim himself, or to
    appoint a referee to decide the claim.

[46]

The administrative judge held that, even without the fresh evidence
    disclosed by Canada, the decision as I have corrected it can only lead to one
    result, that is, that M.F. was entitled to compensation: para. 80. Therefore,
    he did not send the matter back to adjudication. Although the administrative
    judge did not deal with the point in his reasons, his order made an award to
    M.F. at a specified level of harm under the IAP grid, despite the fact the IAP
    requires medical evidence to support that level of compensation and no such
    evidence had been led. The administrative judge also decided that he would
    quantify M.F.s compensation and costs, subject to providing the parties with a
    30-day opportunity to settle the award and costs claim.

ISSUES

[47]

The central issue on this appeal is whether the Administrative Judge
    exceeded the limits of his authority by failing to apply
Schachter,
which
    expressly limited judicial recourse to challenge IAP decisions to very
    exceptional circumstances, by overturning and making findings of fact, and by
    awarding compensation and costs to M.F. rather than remitting the claim for
    reconsideration to the Chief Adjudicator. The appeal also raises the issue of
    the proper roles of the Review and Re-Review Adjudicators. The issue raised by the
    cross-appeal is whether Canada breached its IAP disclosure obligations.

[48]

Independent counsel supports the position of M.F. The Chief Adjudicator,
    intervener, supports Canadas position with respect to the jurisdictional issue
    and the roles of the Review and Re-Review Adjudicators.

ANALYSIS

Schachter and the jurisdiction of the
    administrative judge

[49]

The starting point for determining the availability of recourse to the
    courts to challenge IAP decisions is the decision of this court in
Schachter
.
    That case involved an attempt to appeal a determination made by the Chief
    Adjudicator in relation to legal fees. Winkler C.J.O., the administrative judge
    who had been instrumental in the approval of the IRSSA and who was entirely
    familiar with the IAP process it established, ruled that the IAP only allowed
    for appeals to the court in certain defined circumstances, and that all other
    appeals were excluded. He also ruled that as the Chief Adjudicator was not
    exercising a statutory power of decision, judicial review of IAP orders was
    also excluded:
Fontaine v Canada (AG)
(7 March 2011)

[50]

This court dismissed an appeal from that decision. Writing for a
    unanimous court, Rouleau J.A. emphasized the importance of respecting the
    expertise of the Chief Adjudicator, and of protecting the IAP from curial
    review that would undermine the finality of IAP decisions. He agreed with
    Winkler C.J.O. that there was no appeal from an IAP decision, and no right to
    judicial review. However, this court left open the possibility of judicial
    recourse in very exceptional circumstances (para. 53) or very limited
    circumstances (para. 57). Rouleau J.A. described those exceptional or limited
    circumstances at paras. 57 and 78 in the following words:

[I]n the very limited circumstances where the final decision of
    the Chief Adjudicator reflects a failure to comply with the terms of the
    [IRSSA] or the implementation orders, the aggrieved party may apply to the
    Administrative Judges for directions. These limited circumstances would include
    where the Chief Adjudicator upholds a decision of the Adjudicator as fair and
    reasonable even though the Adjudicator failed to consider the factors set out
    in para. 18 of the implementation orders in arriving at his/her fee review
    decision in a specific case. By providing for recourse to an Administrative
    Judge in these limited circumstances, the parties will be able to ensure that
    the bargain to which they consented is respected.



[A] Request for Direction may only be brought where it is alleged
    that the Chief Adjudicator's decision reflects a failure to enforce the
    provisions of the [IRSSA] and the implementation orders. This very limited
    availability of a right to seek review of a Chief Adjudicator's decision
    reflects both the importance of the finality of decisions under the [IRSSA] and
    the relative expertise of the Chief Adjudicator in the legal fee review
    process.

[51]

I see no merit in M.F.s argument that
Schachter
should be read
    narrowly as applying only to legal fee determinations. That argument was
    properly rejected in
Fontaine v. Canada (Attorney General),
2016 BCSC 2218 at para. 176.
While
Schachter
involved a dispute concerning IAP legal fees, the principles upon which the
    decision rests apply with equal force to IAP compensation decisions. The IAP
    represents a comprehensive, tailor-made scheme for the resolution of claims by
    trained and experienced adjudicators, selected according to specified criteria
    and working under the direction of the Chief Adjudicator. Allowing appeals or
    judicial review to the courts from IAP decisions is not contemplated by the
    IAP, the IRSSA or the Implementation Orders. Allowing appeals or judicial
    review would seriously compromise the finality of the IAP and fail to pay
    appropriate heed to the distinctive nature of the IAP and the expertise of IAP
    adjudicators.

[52]

I disagree with the administrative judges conclusion that
Schachter
created a general curial jurisdiction in relation to the IAP. This court
    did not use that phrase and the entire thrust of the judgment is to the
    contrary. As Brown J. explained in
Fontaine v. Canada (Attorney General),
2016 BCSC 2218, at para. 177
: the phrase
    curial review suggests a right to seek review before the courts and a
    standard of review, both of which are untenable in the light of
Schacher
.

[53]

Schachter
imposed strict limits on the scope for judicial
    intervention. It did so to respect the IRSSA, the contract the parties
    negotiated, of which the IAP is a fundamental part. As this court recognized in
Fontaine v. Canada (Attorney General),
2016 ONCA 241 at para. 48:
    [a]djudicators are specially trained to conduct the hearing in a way that is
    respectful to the claimant and conducive to obtaining a full description of his
    or her experience. The IAP has been aptly described as a complete code that
    limits access to the courts, preserves the finality of the IAP process and respects
    the expertise of IAP adjudicators: see
Fontaine v. Canada (Attorney
    General),
2016 BCSC 2218, at para. 178.


[54]

Subsequent decisions confirm the limits imposed by
Schachter
.
    In
Fontaine v. Canada (Attorney General),
2016 MBQB 159, Edmond J.
    held that judicial recourse was limited to ensuring that the Review Adjudicator
    did not endorse a legal interpretation that was so unreasonable that it
    amounted to a failure to apply the IAP. In
Fontaine v. Canada (Attorney
    General),
2016 BCSC 2218, at para. 183, Brown J.  held that judicial
    recourse was limited to situations where an IAP decision reflects a patent
    disregard for the IAP Models compensation rules, such as a failure to award
    compensation on the basis of the rubric it provides or (at para 211), was so
    exceptionally wrong at to amount to a failure the apply the IAP Model.

Did the administrative judge exceed the limits
    imposed by Schachter?

[55]

In my respectful view, the administrative judge failed to respect the
    limits imposed by
Schachter.
His reasons reveal that he undertook a
    full-blown appeal of the IAP decisions on both law and fact. He engaged in a
    detailed review of the factual findings made by the Adjudicator, and thereby
    assumed the role of the Review Adjudicator. He was not entitled to assume a
    role the IAP specifically assigns to the Review Adjudicator. The Review
    Adjudicator had reviewed the evidence in some considerable detail and explained
    why she found that the Adjudicator made no palpable or overriding error. While
    the administrative judge may have disagreed with her conclusion, disagreement
    with the result reached does not equate to a failure to enforce the IRSSA agreement
    or apply the IAP model, thereby justifying judicial intervention. If it did,
    all IAP decisions would be appealable to the courts, the very thing
Schachter
forbids. The Review Adjudicator conducted the very review of the
    Adjudicators factual findings that is mandated by the IAP by considering
    whether the Adjudicator had made a palpable and overriding error of fact. Both
    the Adjudicators factual findings and the Review Adjudicators review of them
    on the palpable and overriding error standard were entitled to the high level
    of deference imposed by
Schachter
.

[56]

In
Fontaine v. Canada (Attorney General),
2016 BCSC 2218, at
    para. 180, Brown J., who has many years of experience administering the IRSSA,
    explained the rationale for a judicial hands-off approach to IAP fact
    finding: Despite my years of administering the IRSSA, it would be impossible
    for me to know better than those who have been immersed in the IAPThe Courts
    are simply not well-placed to make findings of fact. See also
Fontaine v
    Canada (Attorney General)
, 2016 MBQB 159, at para. 59, confirming the
    exclusive jurisdiction of independent adjudicators to make findings of fact,
    upholding the parties clear intention as reflected in the IRSSA that IAP
    adjudicators, and not judges, should find facts and determine amounts of
    compensation in accordance with the IAP.

[57]

I do not agree with M.F.s suggestion that the passing reference to the
Dunsmuir
standard indicates that the Review Adjudicator failed properly to apply the
Housen
test for palpable and overriding error to the facts found by the Adjudicator.
    The issue was one of fact: when did the abuse occur? There was no danger here
    that reference to the
Dunsmuir
reasonableness standard skewed the
    Review Adjudicators consideration of the palpable and overriding error
    standard. When considered in that context, the Review Adjudicators finding
    that the Adjudicators findings fell within a reasonable range of outcomes was
    consistent with
H.L. v. Canada (Attorney General)
, 2005 SCC 25, [2005]
    1 S.C.R. 401. At para. 57, the Supreme Court, citing the writings of Professor
    Adrian Zuckerman, stated that an appellate court must not intervene in factual
    findings under a palpable and overriding error standard if the appeal court
    cannot conclude that the lower courts inference from the primary facts was
    wrong, in the sense
that it fell outside the range of inferences that a
    reasonable court could make
 (emphasis added).

[58]

I would add that even if the administrative judge had been entitled to
    review the Adjudicators findings, I disagree with his conclusion that they
    reveal palpable and overriding errors. There was, in my view, some evidence to
    support her findings. M.F.s claim stated that the abuse took place over a two
    year period in 1960-62. M.F. testified that the abuse could have commenced earlier
    when he was eight years old, after he had been recruited and trained by Father
    B. as an altar boy, but as M.F.s eighth birthday fell within a month of the
    schools closure, the timing was problematic. M.F.s counsel suggested that the
    abuse may have occurred at the church but in relation to the girls school
    after the boys school had closed. However, M.F. testified that he did not
    recall any IRS students attending the masses at which he served as altar boy. On
    that record, the Adjudicator was entitled to conclude that M.F. had not met the
    burden of proving certain necessary elements of his claim, namely, that the
    abuse had occurred at the Spanish Boys IRS before it closed, or that it arose
    from or was connected with the operation of the school.

[59]

The Re-Review Adjudicator fully considered M.F.s argument that the
    Adjudicator had made improper use of her extra-curial knowledge in relation to
    the age at which boys are confirmed in the Catholic Church. After a thorough
    review of the record, the Re-Review Adjudicator concluded that the
    Adjudicators decision could be supported without reference to her extra-curial
    knowledge. That conclusion was, in my view, supportable. As I have already
    explained, there was considerable evidence beyond this extra-curial knowledge
    from which a fact-finder could reasonably conclude that M.F. had failed to
    establish the necessary elements of his claim as an IRS non-resident. While I
    understand that the administrative judge did not agree with that conclusion,
    the Re-Review Adjudicators decision was not so unreasonable or exceptionally
    wrong that it amounted to a failure to enforce the IRSSA or apply the IAP model.

[60]

The administrative judge appears to have taken the view that if, in his
    judgment, M.F. was entitled to compensation, any other conclusion necessarily
    reflected a failure to apply the IAP model. In my respectful opinion, that
    approach reflects a failure to follow the strictures imposed in
Schachter
on
    recourse to the courts from IAP decisions, and one that, if accepted, could
    significantly undermine  the finality and integrity of the IAP.

Newly discovered evidence

[61]

As Canada is prepared to consent to an order remitting M.F.s claim to
    the Chief Adjudicator for reconsideration in the light of the newly discovered
    documents, it is not necessary for me to consider whether, in the circumstances
    of this case, the newly discovered evidence would amount to an exceptional
    circumstance that would allow for judicial recourse.

Remedy

[62]

It follows from what I have said about the limited jurisdiction of the
    administrative judge that he erred by making his own determination of M.F.s
    claim rather than remitting it to the Chief Adjudicator for re-consideration.
    Nor can his decision to depart from the IAP model for determining the appropriate
    level of compensation and costs be supported. The determination of harm and
    level of compensation requires the specialized knowledge and experience of an
    IAP adjudicator. The compensation rules include an intricate points system. The
    category of harm the administrative judge selected requires a medical
    assessment, and none had been provided. The IAP also requires reasons for the
    assessment of harm and, as noted, the administrative judge gave none, as the
    specified level of harm first appeared in the order he signed. He was, in my
    view, not entitled to depart from the IAP to establish an alternate framework
    whereby he could delegate responsibility to determine compensation or fees to
    other judicial officers.

[63]

I have no doubt that the administrative judge was motivated by a genuine
    and sincere desire to see that justice was done in this particular case, and to
    ensure that M.F. received compensation without further delay. Doing justice,
    however, involves more than going straight to what the judge thinks is the
    right result. Justice requires that procedural rules and jurisdictional
    boundaries designed to protect the rights of all parties be respected. The IRSSA
    provides that claims for compensation are to be resolved not by courts, but by
    trained and specialized adjudicators operating under the carefully designed IAP
    model. In my view, justice in this case can more fully and completely be
    achieved for all parties by respecting the IAP, following the law as laid down
    in
Schacher
, and remitting M.F.s claim for proper reconsideration by
    the Chief Adjudicator under the terms of the IAP, in accordance with the
    agreement of all parties to the IRSSA.

Roles of the Review and Re-Review Adjudicators

[64]

For the sake of completeness and to clarify matters for future cases, I
    add that in my view, the administrative judge erred in his interpretation of
    the IAP review and re-review model. For convenience, I repeat here the relevant
    provisions:

(i)

For cases within the standard or
    complex track, any party may ask the Chief Adjudicator or designate to
    determine whether an adjudicators, or reviewing adjudicators, decision
    properly applied the IAP Model to the facts as found by the adjudicator, and if
    not, to correct the decision, and the Chief Adjudicator or designate may do so.

(ii)

In both the standard and the
    complex issues tracks, Claimants may require that a second adjudicator review a
    decision to determine whether it contains a palpable and overriding error.

(iii)



(iv)

If a palpable and overriding
    error is found, the reviewing adjudicator may substitute their own decision or
    order a new hearing.

[65]

I disagree with the administrative judge that these provisions
    contemplate two levels of review of factual findings on the palpable and
    overriding error standard. The provisions make a distinction between review on
    the ground that the Adjudicator failed to properly apply the IAP model on the
    one hand, and review of factual findings for palpable and overriding error, on
    the other. The power to review on grounds of compliance with the IAP model is
    given to a reviewing Adjudicator, a term that embraces both the first and
    second level of review. However, only a second Adjudicator is specifically
    assigned the responsibility to review an Adjudicator decision for factual errors
    on the palpable and overriding standard. In my view, the term second
    adjudicator can only embrace the first level of review. I add that it would
    constitute a breach of the IAP model should the second adjudicator
    inappropriately fail or refuse to conduct a review for palpable and overriding
    error, and it would be open to a Re-Review Adjudicator to so find. However, it
    would be wrong for a Re-Review Adjudicator to second-guess a Review
    Adjudicators call on factual errors under the guise of upholding the IAP
    model. There may also be cases where misapplication of the IAP framework by the
    Review or Re-Review Adjudicator could involve disturbing factual findings made
    by an Adjudicator. For example, if the Adjudicator used extra-curial knowledge
    as an independent basis for a decision contrary to the framework, correcting
    such a misapplication of the framework will necessarily involve interference
    with the factual findings of the Adjudicator.

[66]

Finally, both the Review Adjudicator and the Re-Review Adjudicator have
    the authority to review prior decisions to ensure that the IAP model has been
    followed. I agree with the Re-Review Adjudicator in the present case that the
    standard of review for that must be correctness: see
Fontaine v. Canada
    (Attorney General),
2016 BCSC 2218, at para. 24. I also agree that the
    task of the Re-Review Adjudicator is to review the decision of the Review
    Adjudicator. However, as the standard of review on the only available ground is
    correctness, the Review Adjudicators decision on that issue does not attract
    deference at the Re-Review stage.

Cross appeal

[67]

Shortly before the oral argument of this appeal, M.F. moved to amend his
    Notice of Cross Appeal. Canada did not consent to the amendment but did not
    strenuously resist. In my view the amendments sought were inconsequential and I
    would accordingly dismiss the motion to amend.

[68]

I agree with the administrative judge that Canada did not breach its
    disclosure obligations. In any event, I fail to see what purpose a declaration
    to that effect would serve at this point.

[69]

The documents at issue were listed as supporting documents in the IRS
    School Narrative and POI Report and copies were available upon request. There
    is no suggestion that Canada acted improperly or was concealing the documents.
    There is no dispute that Father B.s name should not have been redacted in the
    diary, but as no one asked for the document, the improper redaction caused no
    harm.

Disposition

[70]

I would allow the appeal, dismiss the cross-appeal and remit M.F.s
    claim to the Chief Adjudicator for reconsideration. As the administrative judge
    noted, M.F. has waited a long time and gone through many proceedings and his
    claim has not yet been resolved. It is plainly in the interest of justice that
    the reconsideration be completed as soon as possible.

[71]

Canada does not seek costs of the appeal. The more difficult issue is
    whether we should accede to the claims advanced by M.F. and Independent Counsel
    that Canada pay their costs despite the outcome of the appeal. Awarding costs
    to an unsuccessful litigant is permitted by Rule 57.01(2) of the
Rules of
    Civil Procedure
, but doing so is rare. Canada has benefitted from having
    the law clarified on important aspects of the IAP process, a factor that may
    justify an award of costs to an unsuccessful party:
Schachter v. Canada,
[1992] 2 S.C.R. 679;
B. (R.) v. Childrens Aid Society of Metropolitan
    Toronto
, [1995] 1 S.C.R. 315. The fees of lawyers representing IAP
    claimants are limited and relatively modest. This appeal raised and clarified
    important legal issues that transcended the interests of M.F. This court
    benefited from having the submissions of M.F. and Independent Counsel in
    resolving those issues. It seems to me that in these circumstances, it would be
    in keeping with the spirit of the IRSSA and the interests of justice to require
    Canada to pay $50,000 inclusive of disbursements and taxes towards M.F.s costs
    here and below. I would also award costs to Independent Counsel, fixed at
    $10,000, inclusive of disbursements and taxes.

Released: January 16, 2017

Robert J. Sharpe J.A.

I agree G.R. Strathy
    C.J.O.

I agree Alexandra
    Hoy A.C.J.O.


