



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA
    550

DATE: 20210729

DOCKET: M52692 (C68080)

Fairburn A.C.J.O., Roberts and Thorburn JJ.A.

BETWEEN

Larry
    Philip Fontaine in his personal capacity and in his capacity as the Executor of
    the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq,

Percy Archie, Charles
    Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John
    Bosum, Janet Brewster, Rhonda Buffalo, Ernestine 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. François dAssise, Institut des Soeurs du
    Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyacinthe, Les Soeurs de
    Jésus-Marie, Les Soeurs de lAssomption de la Sainte Vierge, Les Soeurs de
    lAssomption de la Sainte Vierge de lAlberta, Les Soeurs de la Charité de
    St.-Hyacinthe, Les Oeuvres Oblates de lOntario, 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, 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 Épiscopale 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 Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal
    Corporation of Keewatin, La Corporation Archiépiscopale 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 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 (
Respondent
)

Joanna Birenbaum, for the appellant National Centre for
    Truth and Reconciliation

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

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

P. Jonathan Faulds, Q.C., for the respondent National Administration
    Committee

Heard: in writing

On appeal from the order of
    Justice Paul M. Perell of the Superior Court of Justice, dated January 20,
    2020, with reasons reported at 2020 ONSC 366.

REASONS FOR DECISION

[1]

By reasons released on April
    1, 2021, this court allowed in part the appeal by the National Centre for Truth
    and Reconciliation (NCTR) of the January 20, 2020 order of the Eastern
    Administrative Judge, Paul M. Perell J., regarding the disposition of proposed
    statistical reports and records arising out of the Indian Residential Schools
    Settlement Agreement (IRSSA) and the Independent Assessment Process (IAP). Specifically,
    this court ordered that the proposed statistical reports (Static Reports) be
    prepared by the Chief Adjudicator and produced under seal to Perell J. for the
    purpose of addressing issues of confidentiality, reliability and archival
    utility.

[2]

As set out in paragraph 86
    of this courts reasons, given that the Chief Adjudicators mandate was
    scheduled for completion on March 31, 2021, it was recognized that further
    direction may be required concerning next steps:

Accordingly, we order that any proposed Static Reports be
    produced in final form by the Chief Adjudicator, placed under seal, and
    submitted to the Supervising Judge prior to the rehearing. If the Chief
    Adjudicator is unable to produce the proposed Static Reports prior to the
    closure of the Secretariat, the parties may seek direction from this court.

[3]

The Chief Adjudicator was
    not able to prepare the Static Reports because of the completion of his
    mandate. As a result, the NCTR brought a motion for directions to this court asking
    that an independent third-party statistical expert be appointed to prepare the Static
    Reports. Canada opposes the NCTRs motion; it takes the position that Canada
    should prepare the Static Reports.

[4]

During case management of
    the NCTRs motion for directions, a preliminary issue arose as to whether the
    motion should be heard by this court or remitted to Perell J. for management
    and determination. Written submissions on this preliminary issue were requested
    and delivered.

[5]

The NCTR, supported by the
    Assembly of First Nations (AFN) and the National Administration Committee
    (NAC), submits that for reasons of efficiency, consistency with this courts
    April 1 order, and judicial independence and integrity, this court should hear
    the NCTRs motion for directions in order to give effect to its order that the Static
    Reports be produced. The NCTR contends that the judge who will adjudicate on
    the reports, once they are produced, should not also have been involved in
    determining how the reports should be prepared.

[6]

Canada disagrees and
    maintains that the motion for directions to determine who should prepare the Static
    Reports is more properly brought before Perell J. who, as the Eastern
    Administrative Judge, has jurisdiction to deal with IRSSA matters, has already dealt
    with the other motions concerning the disposition of the records related to the
    IRSSA and IAP, and to whom this court remitted the Static Reports issue by its
    April 1, 2021 order. It would be inappropriate and inefficient for this court
    to have an ongoing supervisory role over these issues.

[7]

There is nothing in
    paragraph 86 of this courts reasons that seizes this court with determining
    who should prepare the Static Reports. While the parties were invited to seek
    directions from this court if the Chief Adjudicator was unable to produce the
    Static Reports, that is precisely what the court is now engaged in, providing
    directions on how to move forward. We agree with Canadas position.

[8]

It is not appropriate or
    desirable that we determine this issue. It may have been a different matter if
    the parties had come to an agreement regarding the appointment of the person
    who will prepare the Static Reports and were simply seeking a consent order. However,
    as Mr. Faulds quite rightly pointed out in his submissions for the NAC, the
    proceedings concerning the Static Reports have been contentious. They continue
    to be so. The adjudication of the issue of who should prepare the Static Reports
    will require an exchange of affidavit and other materials and, possibly,
    cross-examinations. It is therefore a more appropriate and expedient use of
    judicial resources for the issue to be managed, litigated and determined in the
    Superior Court of Justice.

[9]

We are also of the view that
    the matter should be remitted to Perell J. In 2013, Perell J. was appointed the
    Eastern Administrative Judge to implement and administer the IRSSA and make
    directions regarding the disposition of the IAP documents. He has therefore
    gained extensive knowledge and experience in dealing with all matters arising
    out of the IRSSA and IAP for Ontario. Accordingly, Perell J. is well positioned
    to determine this issue. This is particularly so given that this court has already
    remitted to him the related issue of addressing the questions of the
    confidentiality, reliability and archival utility of the Static Reports. Therefore,
    he is best placed to determine the issue of who should prepare the Static Reports.

[10]

Accordingly, we order that
    the NCTRs motion for directions be remitted to Perell J. for case management
    and adjudication.

[11]

In the circumstances, we make
    no order as to costs.

Fairburn A.C.J.O.

L.B. Roberts J.A.

J.A. Thorburn J.A.


