



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney
    General), 2021 ONCA 931

DATE: 20211231

DOCKET: M52780 (C69253)

van Rensburg and Roberts JJ.A.
    and Tzimas J. (
ad hoc
)

BETWEEN

Larry Philip Fontaine,
et al.

Plaintiffs

and

The Attorney General of
    Canada
,
et al.

Defendants (
Responding Party
)

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

Fay K.
    Brunning and Michael Swinwood, for the moving parties Dr. Edmund Metatawabin
    and IAP Claimants T-00185, S-20774 and S-16753

Brent Thompson, for the responding
    party the Attorney General of Canada

Heard: November 22,
    2021, with supplementary written submissions

REASONS
    FOR DECISION

[1]

The moving parties brought this motion pursuant to s. 7(5) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, to review an order of Strathy C.J.O.
    dated August 19, 2021, dismissing their motion to extend time to perfect their
    appeal in Court File C69253. The motion is opposed by the respondent, the
    Attorney General of Canada (Canada).

[2]

The moving parties are survivors of the St. Annes Indian Residential
    School (IRS) in Fort Albany, Ontario. Their proposed appeal arises in the
    context of the Indian Residential Schools Settlement Agreement (the IRSSA), a
    court‑supervised class action settlement agreement entered into between
    Canada, church defendants and plaintiff representatives in 2006. The IRSSA was
    approved by the orders of nine superior courts across Canada (the supervising
    courts), including an order of the Ontario Superior Court of Justice on March
    8, 2007 (the Implementation Order). A component of the IRSSA was the
    independent assessment process (the IAP) for the adjudication of abuse
    claims, which has been supervised by the courts. With the completion of all IAP
    claims across the country, the IAP was concluded on March 31, 2021.

[3]

The order under appeal is dated April 20, 2021 (the Independent Review
    Order).
[1]
The order was made by Perell J. as Ontario Supervising Judge under the IRSSA in
    the context of a Request for Directions (RFD) by Canada.
[2]
Canadas RFD sought an order appointing an independent special advisor (ISA)
    to conduct an independent review of certain IAP claims of the St. Annes IRS
    claimants that were settled before Canada provided additional disclosure
    pursuant to certain disclosure orders made by the Ontario Supervising Judge on
    January 14, 2014 and June 23, 2015 (the 2014 and 2015 disclosure orders). The
    proposed independent review was for the stated purpose of responding to public
    concern and confusion about the IAP claims involving St. Annes IRS, and in
    particular about the fairness of adjudications undertaken before Canada had
    provided the revised disclosure.

[4]

The moving parties and others opposed Canadas RFD on a number of
    grounds, including that the review process would be a duplication of an RFD
    proceeding underway before Glustein J. (the Metatawabin RFD #2)
[3]
and that the St. Annes IAP claimants would not be permitted to participate in
    the review process. The moving parties also objected to the Supervising Judge determining
    Canadas RFD, on the basis of his earlier recusal from hearing Metatawabin RFD
    #2.
[4]

[5]

The Independent Review Order directed an independent review of certain
    concluded claims of former St. Annes IRS students. The order appointed the
    Honourable Ian Pitfield, who had previously been appointed by the supervising
    courts for other purposes under the IRSSA, as ISA to conduct the review. The
    order required the ISA to make a report that contains his findings, conclusions
    and recommendations, and for the report to be provided to the court as a sealed
    document, and to Canada.

[6]

The moving parties filed a notice of appeal seeking to appeal the
    Independent Review Order to this court. They raised a number of grounds of
    appeal, including that the Supervising Judge ought to have recused himself from
    hearing Canadas RFD, in view of his recusal in respect of certain matters
    involving St. Annes IRS at an earlier stage; that the order for a review by
    the ISA does not comply with the IRSSA and the Court Administration Protocol,
    and amounts to an amendment to the IRSSA; and that the independent review of
    certain IAP claims of the St. Annes IRS claimants, undermines the proceedings
    that are already underway before Glustein J. in the Metatawabin RFD #2.
    Pursuant to the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, the
    appeal was to have been perfected by May 22, 2021.

[7]

In August 2021, the moving parties brought a motion seeking an extension
    of time to perfect their appeal. The motion judge dismissed the motion to
    extend time. He referred to the fact that the matter had been before this court
    previously when, in declining to grant a stay of the Independent Review Order,
    Paciocco J.A. had characterized the order as probably interlocutory.
[5]
The motion judge also referred to the fact that the moving parties motion for
    leave to appeal the order to the Divisional Court had been dismissed. In
    refusing an extension of time to appeal to this court, the motion judge
    observed that the justice of the case (which is the overarching consideration
    on a motion for an extension of time) did not require an appeal to this court
    where the moving parties statutory appeal rights had been pursued and their
    appeal had been dismissed.

[8]

While it was appropriate for Paciocco J.A. and the motion judge to have
    considered whether the order was final or interlocutory in determining the stay
    and extension of time motions, only a panel of the court can determine the
    question of jurisdiction on a final basis and quash an appeal: see
Courts
    of Justice Act
, s. 7(3). As such, the central issue before us when the
    review motion was argued was whether the Independent Review Order is final or
    interlocutory, and if final, whether the justice of the case warranted an
    extension of time.

[9]

The moving parties asserted that the Independent Review Order is a final
    order, while Canada, endorsing the preliminary conclusions on jurisdiction of
    Paciocco J.A. and the motion judge, argued that the order is interlocutory, and
    that the moving parties, having sought and been refused leave to appeal to the
    Divisional Court, had exhausted their appeal rights.

[10]

As
    a result of developments after the hearing of the review motion, it is now unnecessary
    to determine whether the motion judge erred in concluding that the Independent
    Review Order is an interlocutory order.

[11]

While
    this motion was under reserve, the court was advised by a letter from counsel
    for the moving parties that the ISA had issued his report on the independent
    review on November 30, 2021 and that on December 9, 2021, the Supervising Judge
    had made an order approving the report and discharging the ISA. Copies of the redacted
    report and the order were enclosed. In view of these circumstances, the panel
    invited written submissions on whether the appeal was moot, and if so whether
    the motion should be dismissed on that basis.

[12]

We
    have now received and considered the parties written submissions.

[13]

On
    a motion for an extension of time to appeal or to perfect an appeal, it is
    appropriate for the court to consider whether the appeal is moot. Just as it
    would not be in the interests of justice to extend time to appeal an order that
    lies outside the jurisdiction of this court, it would not be in the interests
    of justice to extend time to perfect an appeal that is moot: see, for example,
Obermueller
    v. Kenfinch Co-operative Housing Inc.
, 2016 ONCA 21, where the eviction
    authorized by the order under appeal had already taken place, and
Willenbrecht
    v. Willenbrecht
(1999), 120 O.A.C. 274, where a challenge to Ontarios
    jurisdiction to enter a divorce judgment was rendered moot by the other forum
    ceding to Ontarios jurisdiction to do so.

[14]

An
    appeal is moot where the factual substratum of the appeal has disappeared. This
    can occur where the order under appeal has been performed or is otherwise spent:
Borowski v. Canada (Attorney General)
, [1989] 1 S.C.R. 342, at p. 354.
    Where an appeal is moot, the court may nevertheless exercise its discretion to
    hear the appeal, considering such factors as the ongoing adversarial context,
    concerns for judicial economy and sensitivity to the role of the courts:
Doucet-Boudreau
    v. Nova Scotia (Minister of Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3, at
    para. 17. The onus is on the party seeking to permit a moot appeal to proceed
    to demonstrate why the court should depart from its usual practice of refusing
    to hear moot appeals:
Tamil Co-operative Homes Inc. v. Arulappah
(2000), 49 O.R. (3d) 566, at para. 17.

[15]

We
    have concluded that the appeal is moot, and there are no grounds for the
    exercise of the courts discretion to hear the appeal. Accordingly, there is no
    basis for an extension of time to appeal.

[16]

The
    process contemplated by the Independent Review Order has been completed. The order
    appointed Mr. Pitfield as ISA to perform a review. The review has taken place
    and the ISA has submitted his report which has also been approved, through a
    subsequent order.

[17]

The
    moving parties, while continuing to make submissions about why it was wrong for
    the Supervising Judge to make the Independent Review order, and raising new
    concerns about the substance of the report and the procedures followed by the
    ISA, as well as the orders of the Supervising Judge approving the ISAs interim
    and final reports (which are not under appeal)
[6]
,
    have not provided any rationale for why the moot appeal should be permitted to
    proceed or why their motion should not be dismissed.

[18]

Canada
    submits that the moving parties appeal is moot. However, it argues that it
    would be useful for future proceedings between the parties if this court would
    determine whether the Independent Review Order is final or interlocutory. We
    disagree. We are not persuaded that the Independent Review Order is the type of
    order to arise again in proceedings between the parties.

[19]

For
    these reasons the review motion is dismissed. Canada advised that it is not
    seeking costs of the motion, and no costs are awarded.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.

E.
    Ria Tzimas, J. (ad hoc)





[1]
Although the moving parties appealed two orders  the order appointing Perell
    J. to hear the RFD and the Independent Review Order  they only sought an
    extension of time to appeal the Independent Review Order, and they are only
    seeking in this review motion to extend the time to appeal that order.



[2]
The RFD process is contemplated by the Implementation Order and the
    Court Administration Protocol, which is an appendix to that order.



[3]
In the
    Metatawabin RFD #2, which was filed on May 12, 2020 and amended in June 2020, the
    moving parties seek a declaration that Canada breached the 2014 and 2015 disclosure
    orders, as well as other relief, including an order compelling Canada to revise
    documentation used in their IAP claims so that St. Annes IRS IAP
    claimants can determine whether they should seek to re-open those claims.
    Canada has brought its own RFD seeking a summary dismissal and to strike the
    Metatawabin RFD #2 as an abuse of process. Both are before Glustein J.



[4]

Perell
    J.
recused
himself as Ontario Supervising Judge from
    hearing the Metatawabin RFD #2. See 2020 ONSC 3497, at paras. 20-24, a decision
    of Perell J. as Eastern Administrative Judge and Brown J. as Western
    Administrative Judge. Their order assigning the hearing of Metatawabin RFD #2
    to Brown J. was overturned by this court in 2020 ONCA 688, which resulted in
    the appointment of Glustein J. by the Chief Justice of the Superior Court to
    hear the Metatawabin RFD #2.



[5]
In
    April 2021 the moving parties brought a motion to stay the Independent Review
    Order and for other relief before a single judge of this court. In reasons
    reported at 2021 ONCA 313, Paciocco J.A. dismissed the stay motion after
    concluding that a stay pending appeal was not in the interests of justice. In
    the course of his detailed reasons, Paciocco J.A. observed that the order was
    probably interlocutory, and therefore outside this courts jurisdiction,
    militating against the existence of a serious issue to be determined on appeal.
    Following the dismissal of the stay motion, the moving parties filed a motion
    seeking leave to appeal to the Divisional Court. That motion was dismissed
    without reasons on July 8, 2021: 2021 ONSC 4848.



[6]
In its
    written submissions on the mootness issue,
Canada suggests that the
    moving parties may seek leave or bring an appeal from the Final Report. At this
    stage, we are not aware of any such appeal having been taken to this court.
    This review motion deals only with the appeal of the Independent Review Order.


