



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2016 ONCA
    813

DATE: 20161101

DOCKET: M47077 (C62519)

Roberts J.A. (In Chambers)

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
Respondent in Appeal
Appellant in Cross-Appeal

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
Appellant in Appeal/Moving Party
Respondent in Cross-Appeal

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

Catherine Coughlan, for the appellant/moving party

No one appearing for the respondent, M.F. (claimant)

Heard: October 28, 2016

Motion by the appellant for a stay pending appeal.

ENDORSEMENT

[1]

The appellant moves for an order staying the July 5, 2016 order of
    Mr. Justice Paul Perell of the Ontario Superior Court of Justice, until 30
    days following the final disposition of the appeal and cross-appeal from this
    order.  The appellant and the claimant/respondent, M.F., also ask that the hearing
    of the appeal and cross-appeal be expedited.

[2]

For the reasons that follow, I would allow the appellants motion for a
    stay and expedite the hearing of the appeal and cross-appeal.

Background

[3]

This matter arises out of the adjudication of M.F.s claim for
    compensation pursuant to the Independent Assessment Process (IAP) established
    under the Indian Residential Schools Settlement Agreement (IRSSA).  There is
    no dispute that over 50 years ago, when he was a child, M.F. was sexually
    abused by a priest associated with an Indian Residential School known as
    Spanish Boys IRS, and that he has suffered and continues to suffer ongoing serious
    psychological injuries as a result of this abuse.

[4]

Following two reviews of the adjudication and denial of his claim, M.F. made
    a request for direction to Perell J., as an administrative judge under the
    IRSSA.  M.F.s claim had previously been denied because of the erroneous
    finding that M.F. had been abused after the closure of the Spanish Boys IRS
    and therefore did not qualify for compensation under the terms of the IRSSA. 
    By the time of the hearing of M.F.s request for direction, a document had come
    to light that demonstrated that M.F. had in fact been abused while the school
    was still in operation.  As a result, the appellant conceded that M.F.s claim
    should be referred back for adjudication with directions but that his request
    for directions was otherwise moot.

[5]

The administrative judge agreed with the position of M.F. and the Independent
    Counsel Group (the participating parties) that the request was not moot because
    the courts direction was needed in the interests of justice concerning the
    review process in relation to factual findings; the appellants obligation to
    produce documents for the adjudicator during the course of an IAP hearing; and
    the courts role in supervising the review and re-review process under the
    IRSSA.  The administrative judge concluded and ordered as follows:

(1)  although Canada made a mistake in redacting Father Bs
    name from one of the after-the-fact examined documents, Canada did not breach
    the IRSSA;

(2)  without the benefit of hindsight, I conclude that the
    Re-Review Adjudicator:  (a) erred and did not apply the correct standard for a
    Re-Review; (b) should have found that the Adjudicator and Re-Adjudicator had
    failed to apply the IAP Model; and (c) should have made an IAP award to M.F.;

(3)  although the court could remit M.F.s IAP Application to
    the Chief Adjudicator to assign an Adjudicator to quantify M.F.s entitlement
    to an IAP award, the court also had the jurisdiction to quantify M.F.s award
    or to direct that it be quantified by a referee of whom, a Master of this court
    or Court counsel appointed under the IRSSA would be appropriate referees;

(4)  in the immediate case, I shall not send the matter back to
    the Chief Adjudicator or appoint a referee; rather, subject to providing the
    parties a 30-day opportunity from the date of this decision to settle M.F.s
    IAP award and his claim for costs, I shall quantify M.F.s IAP award and I shall
    also determine M.F.s claim for costs;

(5)  if the parties are unable to settle the amount of the
    award and the amount for costs, the parties shall make submissions in writing
    based on:  (a) the record now before the court; (b) a bill of costs with supporting
    documents; (c) a factum of no more than 30 pages; and (d) a book of
    authorities; and,

(6)  subject to the parties settling the matter, M.F. shall
    have 60 days from the date of this decision to make his submissions followed by
    Canadas submissions within a further 30 days.  There shall be no reply
    submissions without leave.

[6]

The issued and entered order also provides for a declaration that M.F. is
    entitled to compensation for sexual abuse at the SL4 level and for
    consequential harm at the H4 level.

[7]

No further submissions were made by the parties because the appellant
    launched an appeal from the July 5, 2016 order.  M.F. commenced a cross-appeal.

Stay pending appeal

[8]

Counsel for the appellant advised that M.F. and the Independent Counsel
    Group do not oppose the motion for a stay.  In their email correspondence that
    counsel produced, counsel confirmed that they do not oppose the stay motion
    because of the Chief Adjudicators position that if a stay is ordered by this
    court, current and future re-reviews of claims under the IAP in relation to
    allegations of factual errors will also be stayed pending the disposition of
    the appeal.

[9]

The test for a stay pending appeal is well-settled and mirrors the test
    for an interlocutory injunction:  the appellant must demonstrate that there is
    a serious issue to be tried; irreparable harm will result if the stay is not
    granted; and the balance of convenience favours a stay pending the disposition
    of the appeal:
Longley v. Canada (Attorney General)
, 2007 ONCA 149,
    at para. 14.  It is also well established that these criteria are not to be
    viewed in isolation from each other but as interrelated considerations, and
    that the overarching question is whether the stay is warranted in the interests
    of justice:
Longley
, at para. 15.

[10]

In my view, in the interests of justice, a stay is warranted in the
    circumstances of this case.

Serious issue to be tried

[11]

First, there is no question that the appellant has raised serious issues
    to be tried on appeal with respect to the ongoing supervisory role of the
    courts and the scope of review of factual errors under the IAP of the IRSSA.

[12]

Specifically, the appellant submits that the administrative judge
    exceeded his jurisdiction and erred in law by expanding the scope of review to
    include the consideration of factual errors and in assuming the role of an
    adjudicator in fixing the level of M.F.s compensation and setting out a
    judicial process to quantify that claim and legal fees.  In this way, the
    appellant submits, the administrative judge has created a fourth level of
    review and failed to apply this courts decision in
Fontaine v. Duboff,
    Edwards Haight & Schachter
, 2012 ONCA 471.

[13]

In
Fontaine
, this court directed at para. 78 that a request for
    direction can only be brought in the following very limited circumstances:

In particular, a Request for Direction may only be brought
    where it is alleged that the Chief Adjudicators 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 Adjudicators
    decision reflects both the importance of the finality of decisions under the
    [IRSSA] and the relative expertise of the Chief Adjudicator  .

[14]

As a result, whether or not the administrative judges decision has
    erroneously expanded the scope of review and the courts supervisory role are
    serious issues to be tried.

Irreparable harm to the public interest

[15]

Further, the appellant has satisfied the criterion of irreparable harm
    to the public interest in the consistent and timely adjudication of claims
    under the IRSSA and IAP if the stay is not granted.

[16]

The public interest is a special factor that the appellant is required
    to protect:  it includes the concerns of society generally and the particular
    interests of the identifiable group represented in this class action that
    culminated in the IRSSA and the streamlined adjudicative process of the IAP:
RJR
     MacDonald Inc. v. Canada
, [1994] 1 S.C.R. 311, at paras. 71 and 76.  As
    noted by this court in
Fontaine
, at para. 58, there is the need to
    protect vulnerable claimants and the need for finality, efficiency and the
    timely adjudication of the claims under the IRSSA, especially given the age of
    many of the claimants.

[17]

As counsel submits, the administrative judges decision could affect
    hundreds of cases under review or already settled, in which requests for direction
    to the administrative judge could be sought to review alleged factual errors
    and set compensation and legal fees.  There is the risk of inconsistent results
    and of different treatment among class members.  The decision affects the
    integrity of the IAP process also in that the non-adversarial and inquisitorial
    approach of the adjudicators with respect to fact-finding and the setting of
    compensation and legal fees may be subsumed into the adversarial court process,
    which appears contrary to the intention of the IRSSA.

Balance of convenience

[18]

With respect to M.F. and the Independent Counsel Group, their lack of
    opposition to the appellants motion for a stay satisfies me that they do not
    contest that the balance of convenience favours a stay.  As counsel submits,
    the requested stay will not further delay the payment of compensation to M.F.
    because the appeal would automatically stay any order for the payment of money,
    under r. 63.01(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.

[19]

In considering the balance of convenience, the position of the Chief
    Adjudicator requires me to look at this factor not only in relation to the parties
    to the appeal but also with regard to the claimants whose claim re-reviews
    might be held in abeyance for several additional months pending the disposition
    of the appeal.

[20]

In the October 25, 2016 letter that the Chief Adjudicators counsel
    asked be produced to this court, counsel indicated that the Chief Adjudicator
    will take the following approach to re-reviews until the appeal in this case is
    determined:

There will be no change to the processing of first reviews. 
    The parties will continue to be expected to bring re-review requests with the
    30-day time period or to seek timely extensions to the period of time within
    which a re-review request may be brought.  The parties will continue to be
    expected to provide their written statement of objections and replies to
    statements of objections with the usual time frames.

Claimant re-reviews involving allegations of errors of fact
    will be put in abeyance until the Courts decision is released, unless
    claimants want their re-review to proceed prior to that time.  The Chief
    Adjudicator Claimant will inform claimants seeking a re-review that, at this
    time, re-review adjudicators cannot consider claims that the original
    adjudicator made a factual error that the reviewing adjudicator failed to
    correct, but that the Ontario Court of Appeal is currently considering a case
    that may decide that re-review adjudicators can consider these kinds of errors
    in some circumstances.  The Chief Adjudicator will provide Claimants with an
    opportunity to ask that their re-reviews proceed, but will otherwise await the
    outcome of the Courts decision before proceeding with re-reviews involving
    allegations of factual error.

[21]

Counsel for the appellant submits that while the results from the
    re-review process may be delayed a few months, the balance of convenience nevertheless
    favours a stay because of the need for consistency, fairness and certainty in
    the process.  Moreover, expediting the appeal will attenuate any prejudice to
    the other claimants that may be caused by the increased delay in the
    determination of their re-reviews on alleged factual errors.  I agree with
    these submissions.

[22]

For these reasons, the appellants motion for a stay is allowed.  The appellant
    did not seek costs of the motion.

Expediting the appeal and cross-appeal

[23]

The hearing of the appeal and cross-appeal is at present scheduled for
    March 20 and 21, 2017.  On October 25, 2016, with the consent of the parties,
    the Chief Adjudicator was granted leave to intervene as a friend of the court. 
    Five hours have been allocated to the hearing of the appeal and cross-appeal
    and twenty minutes have been allotted for the Chief Adjudicators submissions. 
    Counsel for the appellant fairly acknowledges that the hearing of this matter
    will take more than one day.

[24]

In my view, given that M.F.s claim has been outstanding for several
    years and having regard to the Chief Adjudicators position regarding the stay
    of all re-reviews that involve allegations of factual errors, it is in the
    interests of justice that the appeal be expedited.

[25]

On the hearing of the motion, counsel for the appellant advised that all
    counsel were available for the hearing of the appeal and cross-appeal on the
    following dates:  December 5 to 11, 2016; January 18-19, and 25-26; and
    February 1 and 2, 2017.  By letter yesterday, counsel for the appellant
    confirmed that all counsel were still available on those dates and would hold
    them until the court office confirms the new hearing dates.

Disposition

[26]

Accordingly, the July 5, 2016 order of Perell J. is stayed until 30 days
    following the final disposition of the appeal and cross-appeal from this
    order.  The hearing of the appeal and cross-appeal shall be expedited and
    rescheduled to two consecutive days in accordance with counsels following
    available dates that they shall leave open until the appeal and cross-appeal
    are rescheduled:  December 5 to 11, 2016; January 18-19, and 25-26; and
    February 1 and 2, 2017.

L.B. Roberts
    J.A."


