



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney
    General), 2020 ONCA 688

DATE: 20201102

DOCKET: C68407

Fairburn A.C.J.O., Rouleau and
    Miller 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. Francois dAssise, Institut des Soeurs du
    Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de
    Jésus-Marie, Les Soeurs de lAssomption de la Sainte Vierge, Les Soeurs de
    lAssomption de la Saint Vierge de lAlberta, Les Soeurs de la Charité de
    St.-Hyacinthe, Les Oeuvres Oblates de lOntario, Les Résidences Oblates du
    Québec, La Corporation Episcopale Catholique Romaine de la Baie James (The
    Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of
    Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of
    Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu
    de Nicolet, The Grey Nuns of Manitoba Inc.-Les Soeurs Grises du Manitoba Inc.,
    La Corporation Episcopale Catholique Romaine de la Baie dHudson-The Roman
    Catholic Episcopal Corporation of Hudsons Bay, Missionary Oblates-Grandin
    Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal
    Corporation of Regina, The Sisters of the Presentation, The Sisters of St.
    Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary
    Immaculate-St. Peters Province, The Sisters of Saint Ann, Sisters of
    Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon,
    Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole,
    The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson,
    Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of
    British Columbia, The Sisters of Charity of Providence of Western Canada, La
    Corporation Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal
    Corporation of Keewatin, La Corporation Archiepiscopale Catholique Romaine de
    St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface-The Missionary
    Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
    Winnipeg, La Corporation Episcopale Catholique Romaine de Prince Albert, The Roman
    Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA,
    Archdiocese of Vancouver-The Roman Catholic Archbishop of Vancouver, Roman
    Catholic Diocese of Whitehorse, The Catholic Episcopale Corporation of
    Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
    Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt.
    Angel Abbey Inc.

Defendants (
Respondent
)

Fay K. Brunning and Michael Swinwood,
    for the appellants Edmund Metatawabin, St. Annes IAP Claimant T-00185, St.
    Annes IAP Claimant S-20774, and St. Annes IAP Claimant S-16753

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

Stuart Wuttke, for the respondent
    Assembly of First Nations

David Schulze, for the respondent
    Independent Counsel

Evatt Merchant, for the respondent
    Merchant Law Group

Estée Garfin, for the intervener
    Attorney General of Ontario

Heard: September 21, 2020 by video conference

On appeal from the order of Justice Paul
    M. Perell of the Ontario Superior Court of Justice, dated June 5, 2020, with
    reasons reported at 2020 ONSC 3497.

Rouleau J.A.:

A.

OVERVIEW

[1]

The appellants are a group of claimants who
    suffered physical and sexual abuse while attending St. Annes Indian
    Residential School (St. Annes IRS) in Fort Albany, Ontario. They are class
    members of the Indian Residential School Settlement Agreement (IRSSA), a
    national class action settlement, who seek to use the Independent Assessment Process
    (IAP), one of the two major methods of financial compensation created by the
    IRSSA, to receive compensation for the physical and sexual abuse that they
    suffered at St. Annes IRS.

[2]

Nine different superior courts across Canada,
    also known as the supervising courts, issued orders approving the IRSSA in late
    2006 and early 2007. Annexed to those orders was a Court Administration Protocol
    (CAP) that governs the process for hearing any Request for Directions (RFD)
    brought by class members or the parties to the IRSSA.

[3]

In May 2020, the appellants filed a RFD regarding
    several matters, including the obligation of the respondent, the Attorney
    General of Canada (the respondent), to comply with previous orders to
    disclose and produce documents and materials that are relevant to the IAP claims
    of the appellants.

[4]

In a joint direction released on June 5, 2020,
    the Supervising Judge of the Ontario Superior Court of Justice (Ontario
    Supervising Judge), acting as the Eastern Administrative Judge pursuant to the
    CAP, directed that this RFD be heard by Brown J. in her capacity as Supervising
    Judge of the Supreme Court of British Columbia (British Columbia Supervising
    Judge). The appellants appeal that order and seek to remit the matter to the
    Chief Justice of the Ontario Superior Court of Justice (Chief Justice) so
    that the Chief Justice may reassign the RFD to another judge of the Ontario
    Superior Court of Justice.

[5]

For the reasons that follow, I would allow the
    appeal.

B.

BACKGROUND

(1)

The IRSSA

[6]

In December 2006 and January 2007, nine superior
    courts from the three territories and the six provinces from British Columbia
    to Québec approved a Canada-wide agreement known as the IRSSA that settles
    various class actions and civil claims related to Indian Residential Schools. By
    its terms, the IRSSA effectively combined all of the outstanding litigation
    relating to Indian Residential Schools into a single class action, with the
    class being composed of approximately 79,000 persons, all former residents of
    an Indian Residential School who were living as of May 30, 2005:
Baxter v.
    Canada (Attorney General)
(2006), 83 O.R. (3d) 481 (S.C.), at para. 4.
    This national class was broken down into various sub-classes for the purpose
    of determining which of the nine approving courts has jurisdiction over the claim
    of a specific class member:
Baxter
,
at para. 5. For example, Ontario residents come within the jurisdiction of the
    Ontario Superior Court.

[7]

In
Baxter
, at para. 8, Winkler R.S.J.,
    as he then was, approved the IRSSA but did so subject to several concerns being
    addressed by the parties. One such concern was the exercise of jurisdiction by
    the supervising courts. Notably, there was a need to address the provisions of
    the settlement that may impact on the ability of this and every other approving
    court to exercise its respective power over the implementation and
    administration of the settlement, as it affects the class members under its
    specific jurisdiction:
Baxter
, at para. 80.

(2)

The CAP

[8]

The CAP was drafted to address this concern. On March
    8, 2007, the nine supervising courts issued Implementation Orders incorporating
    the terms of the IRSSA and otherwise addressing its implementation and
    administration. Each of the nine Implementation Orders included the CAP as
    Schedule A, outlining the procedure for the superior courts ongoing
    supervision of the implementation and administration of the IRSSA. The Preamble
    to the CAP explains that the CAP responds to the need for a streamlined
    process for addressing all matters that require court orders, directions or
    consideration during the course of the administration so as to ensure the
    efficient and expeditious administration of the Agreement.

[9]

In each of the nine supervising courts, a judge
    acts as the Supervising Judge of that court. The CAP provides that two
    Administrative Judges are selected from among these nine Supervising Judges.
    One such Supervising Judge becomes the Eastern Administrative Judge. The
    Ontario Supervising Judge currently holds that position, and it is his order
    that is under appeal. The other is the Western Administrative Judge, a position
    currently held by the British Columbia Supervising Judge, the judge to whom the
    appellants RFD has been referred for hearing.

[10]

Lastly, of notable importance for this appeal is
    para. 5 of the CAP. It provides that, if the Administrative Judges decide that
    a RFD requires a hearing, they will determine the supervising court that will
    hear the RFD by applying the principles outlined in para. 5. The relevant provisions
    of para. 5 are as follows:

5. Should a hearing be required, the
    Administrative Judges will make such direction and determine the jurisdiction
    in which the hearing should be held. In making this determination the
    Administrative Judges will be guided by the following principles:

(a) Where the issue(s) involve relief for a
    particular class member or particular class, the hearing will be directed to
    the supervising court with jurisdiction over the class member or class pursuant
    to the terms of the Agreement and the Approval Orders.

(b) Where the issue(s) affect more than one
    jurisdiction, but not all, the hearing will be directed to a supervising court
    in one of the affected jurisdictions.

(c) Where the issue(s) affect all
    jurisdictions, the hearing may be directed to any court supervising the
    Agreement.



(f) In applying these principles, the
    Administrative Judges may also be guided by any other consideration that he or
    she deems to be appropriate in the circumstances.

(3)

RFDs

[11]

Another important factor allowing for the proper
    administration of the IRSSA is the use of RFDs. As determined in para. 2 of the
    CAP, a party or claimant who seeks court orders, directions or consideration
    during the course of the IRSSAs administration must file a RFD that is brought
    to the attention of the Administrative Judges, who will then determine whether
    a case management conference or a hearing is required by applying the
    principles in the CAP. If a hearing is required, the Administrative Judges
    assign the hearing of the RFD to one of the nine supervising courts.

C.

FACTS

[12]

St. Annes IRS was located in Fort Albany,
    Ontario on James Bay and was the site of some of the most egregious incidents
    of abuse within the Indian Residential School system:
Fontaine v. Canada
    (Attorney General)
, 2014 ONSC 283,
[2014] 2
    C.N.L.R. 86
(
Fontaine #1
), at para. 105. The
    Ontario Provincial Police (OPP) conducted an investigation of St. Anne IRS between
    1992 and 1996, during which it collected a good deal of documentation and
    information. The investigation ultimately led to criminal charges against seven
    former employees of St. Annes IRS, all but one of whom were convicted:
Fontaine
    #1
, at para. 109. In addition to the criminal proceedings, numerous civil
    actions were launched, with parties seeking damages for the abuse suffered by
    the students. These civil claims were largely incorporated into the IRSSA.

(1)

The First RFD

[13]

According to the appellants, the respondent had
    not met its disclosure obligations under the IAP put into place by the IRSSA.
    The IAP requires the respondent to produce a broad array of documentation and
    prepare reports summarizing documents relating both to St. Annes IRS and the
    alleged abusers employed at St. Annes IRS.

[14]

To compel the disclosure of the documents, the
    Truth and Reconciliation Commission of Canada and a group of 60 claimants from
    St. Annes IRS each brought a RFD that the Eastern Administrative Judge heard in
    December 2013, in his capacity as Ontario Supervising Judge. The relief sought
    was granted. The order provided, in part, that the respondent must produce the
    extensive documentation:
Fontaine #1
, at paras. 210-13. Further, the
    order provided that the respondent had to revise the previously produced
    narrative and reports to incorporate the information contained in the additional
    documentation, as required by the IAP:
Fontaine #1
, at para. 15.

(2)

The Second RFD

[15]

Several months following this order, the group
    of claimants from St. Annes IRS, joined by claimants from Bishop Horden IRS, believed
    that the respondent had not yet complied with these new obligations. As a
    result, they brought a further RFD that the Eastern Administrative Judge heard
    in his capacity as Ontario Supervising Judge. On June 23, 2015, an additional
    order was released, requiring the respondent to revise the various documents
    and summaries it had prepared:
Fontaine v. Canada (Attorney General)
,
    2015 ONSC 4061,
[2015] 4 C.N.L.R. 87, at para. 4
.

(3)

The Third RFD

[16]

The appellants believe that the respondent still
    has not complied with these orders. They have brought a new RFD, seeking, among
    other relief, full compliance with the two previous orders. It is this RFD that
    the Administrative Judges had to assign for hearing before one of the nine supervising
    courts. The Eastern Administrative Judge, in a joint direction penned with the
    Western Administrative Judge, assigned the hearing of this RFD to the Western Administrative
    Judge, in her capacity as British Columbia Supervising Judge. This RFD has not yet
    been heard on the merits. It is the Eastern Administrative Judges decision to
    assign the hearing of the RFD to the British Columbia Supervising Judge that is
    the subject of this appeal.

[17]

Central to the appellants RFD is the correct
    interpretation of the two previous orders imposing obligations on the
    respondent. The appellants also request additional relief should the supervising
    court find that the respondent has not complied with the previous obligations.

[18]

In his reasons for directing that the British
    Columbia Supervising Judge hear the RFD, the Eastern Administrative Judge
    explained that, in his capacity as Ontario Supervising Judge, he was unable to
    hear the matter because he was recusing himself. He noted, however, that this recusal
    was only in his capacity as Ontario Supervising Judge, not as the Eastern Administrative
    Judge.

[19]

In reaching his decision, the Eastern Administrative
    Judge relied on the broad discretion given to Administrative Judges in the CAP.
    Specifically, he referred to para. 5(f), as it provides that, in applying the CAP,
    the Administrative Judges may also be guided by any other consideration that
    he or she deems to be appropriate in the circumstances. The considerations
    that guided the Eastern Administrative Judge in his decision were the interests
    of judicial economy and the benefit of assigning the RFD to a judge who has
    been previously involved in the administration of the IRSSA. In his view, these
    interests were best served by assigning the matter to the Western Administrative
    Judge, in her capacity as British Columbia Supervising Judge, given her
    extensive experience in administrating the IRSSA.

[20]

The appellants served a notice of appeal from
    the Eastern Administrative Judges order and brought a motion seeking a stay of
    his order before this court. The stay was granted on July 10, 2020:
Fontaine
    v. Canada (Attorney General)
, 2020 CanLII 64770 (Ont. C.A.).

D.

ISSUE ON APPEAL

[21]

The only issue on appeal is whether the Eastern Administrative
    Judge erred in referring the RFD to the British Columbia Supervising Judge for
    hearing, rather than referring it to the Ontario Superior Court of Justice
    where, because of his recusal as Ontario Supervising Judge, the RFD would have
    to be assigned by the Chief Justice to another judge of the Ontario Superior
    Court of Justice. Before turning to the analysis of that issue, I will address
    the standard of review.

E.

ANALYSIS

(1)

Standard of Review

[22]

As parties to the IRSSA, Independent Counsel and
    the Assembly of First Nations maintain that the standard of review is
    correctness. The Attorney General of Ontario, acting as an intervener in this
    appeal, shares this perspective.

[23]

The Attorney General of Ontario argues that the
    Ontario Superior Court of Justice exceeded its constitutional jurisdiction by referring
    the RFD to the Supreme Court of British Columbia. Whether the Ontario Superior
    Court of Justice has the constitutional jurisdiction to refer a matter to the
    superior court of another province involves, in his submission, a question of
    law that is reviewable on the standard of correctness.

[24]

For his part, Independent Counsel maintains that
    correctness is the appropriate standard of review, as the Eastern Administrative
    Judge was determining which court has the jurisdiction to hear the RFD. Such a
    decision, being one of jurisdiction, must be reviewed on the standard of
    correctness: see
J.W. v. Canada (Attorney General)
, 2019 SCC 20,
[2019]
2 S.C.R. 224, at paras. 110-12,
per
Côté J. (concurring). The Assembly of First Nations also adopts this
    argument. In the alternative, Independent Counsel argues that the CAP is part
    of the Implementation Order and, as a court order, its interpretation is reviewable
    on a correctness standard.

[25]

The respondent argues, for his part, that the CAP
    is an integral part of the settlement reached by the parties. As explained by
    the Supreme Court of Canada, the IRSSA is at root a contract:
Canada
    (Attorney General) v. Fontaine
, 2017 SCC 47,
[2017]
    2 S.C.R. 205 (
Fontaine SCC
), at para. 35.
Since the IRSSA is a contract,
    its interpretation is a question of mixed fact and law reviewable for palpable
    and overriding error:
Fontaine SCC
, at para. 35.

The
    interpretation of the IRSSA, and by extension the CAP, is therefore generally entitled
    to deference on appeal: see
Sattva Capital Corp. v. Creston Moly Corp.
,
    2014 SCC 53,
[2014] 2 S.C.R. 633, at paras. 50-52;
Heritage Capital Corp. v. Equitable Trust Co.
, 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 21
.

[26]

Furthermore, the respondent rejects the
    suggestion that the decision under appeal is one of jurisdiction. By not opting
    out of the IRSSA, all class members became members of the national class and are
    taken to have attorned to the jurisdiction of all nine supervising courts: see
Baxter
,
at para. 79. The respondent notes that
    the CAP gives the Administrative Judges broad discretion, as they decide
    whether a RFD will even be sent for a hearing:
National Administration
    Committee v. Canada (Attorney General)
, 2019 BCCA 270, at paras. 40-42. It
    follows that, if they determine that a hearing is necessary, they retain this
    broad discretion and can select which of the nine supervising courts will hear
    the matter. Viewed in this way, significant deference is owed to the
    Administrative Judges, as their decision is one of forum selection, not
    jurisdiction, and there is no basis for this court to interfere with the
    Eastern Administrative Judges exercise of this discretion.

[27]

In my view, the arguments of the respondent
    cannot stand, and the appropriate standard of review is that of correctness. I
    have reached this conclusion on two separate bases.

[28]

First, the CAP is not a part of the IRSSA or a contract
    settling the claim. Rather, it is an appendix to the Implementation Order,
    which is a court order that implements the IRSSA. It constitutes, therefore, a
    directive issued by the nine supervising courts in which they set out how they
    will exercise their respective jurisdiction to decide issues arising from the
    implementation of the court approved settlement.

[29]

Courts consider the interpretation of a court
    order to be much like the interpretation of a statute. The interpretation of
    the CAP involves, therefore, a question of law that is reviewable on the
    standard of correctness: see
Onion Lake Cree Nation v. Stick
, 2020
    SKCA 101, at paras. 44, 61.

[30]

Second, I also view the decision as one of
    jurisdiction, which means that the appropriate standard of review is also correctness:
    see
J.W.
, at paras. 110-12,
per
Côté J. (concurring). As the
    introductory portion of para. 5 of the CAP indicates, once the Administrative Judges
    determine that a hearing is required, they determine the jurisdiction in which
    the hearing should be held. Paragraph 5(a) is quite specific in that, where
    the issue involves relief for a particular class member or particular class,
    the hearing is directed to the supervising court with jurisdiction over the
    class member or class. Clearly, this makes the decision of the Eastern
    Administrative Judge one of jurisdiction.

[31]

In summary, whether viewed as the interpretation
    of a court order or the determination of jurisdiction, the decision of the
    Eastern Administrative Judge is reviewable on the standard of correctness.

[32]

However, even if I am wrong about the standard
    of review and the interpretation of the CAP involves a question of mixed fact
    and law entitling the Eastern Administrative Judges decision to deference, I
    would nonetheless allow the appeal.

[33]

As I will explain, I have concluded that the
    Eastern Administrative Judge did not consider the mandatory language of para. 5(a)
    of the CAP. He relied exclusively on the discretionary and permissive language
    of para. 5(f). Furthermore, he did not interpret para. 5(f) in the context of the
    purpose of both the IRSSA and of the CAP read as a whole. As a result of these errors,
    appellate intervention is justified, even if the standard of review is not
    correctness, as the failure to consider and properly interpret the mandatory
    language in para. 5(a) of the CAP is an extricable question of law, thereby
    disentitling the Eastern Administrative Judges decision to deference: see
Housen

v. Nikolaisen
, 2002 SCC 33,
[2002] 2 S.C.R.
    235, at paras. 34-37;
Sattva
, at para. 53.

(2)

Did the Eastern Administrative Judge err by
    referring the appellants RFD to the British Columbia Supervising Judge?

[34]

The outcome of the appeal turns on the proper
    interpretation of para. 5 of the CAP. While their interpretations differ, the
    appellants, the respondent, and the other parties to the IRSSA all rely on the
    CAP in support of their position.

(a)

The Eastern Administrative Judges
    Interpretation of Para. 5(f) of the CAP

[35]

In his reasons for directing that the British
    Columbia Supervising Judge hear the appellants RFD, the Eastern Administrative
    Judge relies almost exclusively on para. 5(f) of the CAP. Specifically, para.
    5(f) provides that an Administrative Judge may also be guided by any other
    consideration that he or she deems to be appropriate in the circumstances when
    applying the principles set out in para. 5. He then explained that the interests
    of judicial economy and experience were especially prominent in the present
    case because the IRSSAs administration was in its final stages and the appellants
    RFD needed to be decided on an urgent basis. As a judge possessing a great deal
    of experience and knowledge in respect to the IRSSAs administration, the
    British Columbia Supervising Judge was clearly the appropriate choice.

[36]

It is important to note that the Eastern Administrative
    Judge was equally qualified to hear the RFD. Yet, his decision to recuse
    himself from the hearing of the RFD explains his direction to assign the RFD to
    the British Columbia Supervising Judge rather than to another judge of Ontario
    Superior Court of Justice, as requested by the appellants. Because of his
    recusal as Ontario Supervising Judge, if the matter remained at the Ontario
    Superior Court of Justice, a different judge with little or no experience with
    the IRSSA would hear the RFD. In the Eastern Administrative Judges view, such
    an outcome would not be in the interests of judicial economy and experience.

[37]

The Eastern Administrative Judge also noted
    that, because of the COVID-19 pandemic, the supervising court would hold a
    virtual hearing. As a result, it was of little consequence whether the judge hearing
    the RFD was located in British Columbia or in Ontario, as the appellants could
    remotely attend the hearing from any location in Canada.

[38]

I take no issue with the Eastern Administrative Judges
    analysis of para. 5(f). The interests of judicial economy and experience are
    important considerations. In fact, as submitted by the respondent, the efficient
    and expeditious administration of the IRSSA was a reason for adopting the CAP,
    as set out in its Preamble.

[39]

In my view, however, the analysis cannot end there.
    By basing his decision on this one consideration, the Eastern Administrative Judge
    erred.

(b)

The Proper Interpretation of Para. 5(a) of the
    CAP

[40]

In applying the principles set out in para. 5,
    the Eastern Administrative Judge first had to consider the whole of para. 5. In
    particular, he had to determine whether para. 5(a), by its terms and language,
    was mandatory and therefore required that the RFD be assigned to the Ontario Superior
    Court of Justice. Notably, para. 5(a) specifies that where a RFD raises issues
    involving relief for a particular class member or particular class, the
    hearing
will
be directed to
the
supervising court with
    jurisdiction over the class member or class pursuant to the terms of the Agreement
    and the Approval Orders
 (emphasis added).

[41]

The appellants RFD deals strictly with the
    rights of members of the Ontario class and involves abuse having occurred exclusively
    at St. Annes IRS, which is an Ontario facility. While the Eastern Administrative
    Judge includes the text of para. 5(a) among the excerpts of the CAP that were
    relevant, he carries out no analysis and provides no explanation as to why this
    provision is not mandatory. Specifically, he makes no mention of the fact that,
    as used in para. 5(a), the term will is properly understood to impose an
    obligation. In contrast, the term may, as it appears in paras. 5(c), 5(d),
    5(e), and 5(f), is permissive and discretionary: see
Ruth
    Sullivan,
Sullivan on the Construction of Statutes
, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), at paras. 4.56,
    4.60, 4.80
. Furthermore, he does not address the reference
    in para. 5(a) to the rather than a supervising court, which alludes to the
    fact that where para. 5(a) applies, there is only one specific supervising
    court that has jurisdiction over the particular class member or particular
    class.

[42]

In my view, the Eastern Administrative Judge had
    to consider and apply para. 5(a) and interpret it in the context of both the CAP
    and the IRSSA as a whole. As stated earlier, his failure to do so is an extricable
    error of law disentitling his decision to deference. In any event, the CAP is a
    court order and its interpretation involves a question of law, which ensures
    that the Eastern Administrative Judges decision is reviewable on the standard
    of correctness. Had he carried out the proper analysis, he would have concluded
    that para. 5(a) was indeed mandatory and it required that RFDs involving
    strictly Ontario class members and Ontario institutions were to be directed to
    the Ontario Superior Court of Justice for hearing. The wording of para. 5(a) is
    clear and unambiguous. In cases such as the present, the RFD 
will
 be assigned to 
the
 supervising court with
    jurisdiction
over the class member or class. Notably, the IRSSA itself
    stipulates that the Appropriate Court is the court of the province or
    territory where the Class Member resided on the Approval Date, which is the
    date the last Court issued its Approval Order. This definition links one
    supervising court, in this case the Ontario Superior Court of Justice, to
    specific class members, in this case the appellants. By providing clarity as to
    the court that will hear a RFD, such an interpretation of para. 5(a) also
    advances the interests of judicial economy and the orderly administration of
    the IRSSA.

[43]

Interpreting para. 5(a) in this way is
    consistent with
Baxter
,
where the court explained, at para. 5, that the national class created by the
    IRSSA was to be broken down into sub-classes by province for the purpose of
    determining which of the nine approving courts has jurisdiction over the claim
    of a specific class member. There would be little point in creating
    sub-classes for this purpose if all nine supervising courts could exercise
    jurisdiction to decide any RFD and if the Administrative Judges were free to
    assign a RFD to any supervising court. In fact, there would be little purpose
    in having paras. 5(a), 5(b), and 5(c) if the CAP allowed for such unfettered
    discretion.

[44]

If considerations pursuant to para. 5(f) that may
    be taken into account, such as the interests of judicial economy and experience,
    are used to trump the determination of jurisdiction made pursuant to para. 5(a),
    the use of will in para. 5(a) would be rendered meaningless. Yet, if the term
    will is given its plain and ordinary meaning and is taken to be mandatory,
    considerations that may be taken into account pursuant to para. 5(f) cannot
    be used to trump the para. 5(a) determination of jurisdiction. When
    interpreting a court order, one must pay particular attention to the language
    used in the court order itself:
Yu v. Jordan
, 2012 BCCA 367, 354 D.L.R.
    (4th) 8, at para. 53. Much like the fundamental rules of contractual
    interpretation, specific terminology can override general terms: see
BG
    Checo International Ltd. v. British Columbia Hydro and Power Authority
,
[1993] 1 S.C.R. 12, at p. 24
. Here, the use
    of will in para. 5(a), a specific term, overrides the use of may in para.
    5(f), a general term.

[45]

Interpreting para. 5(a) in this way does not render
    para. 5(f) meaningless. Considerations deemed to be appropriate pursuant to para.
    5(f) can be used to decide which is the most appropriate jurisdiction to hear a
    RFD where the RFD is one that comes within the purview of paras. 5(b) or 5(c).
    In both of those cases, an Administrative Judge is free to select from among
    several jurisdictions, which would allow the Administrative Judge to consider
    relevant factors pursuant to para. 5(f).

[46]

This interpretation of para. 5(a) is also consistent
    with the context and terms of the IRSSA read as a whole. The processes put into
    place through the settlement were intended, in part, to allow the class members
    to be heard, favouring healing for the victims and allowing for reconciliation.
    As explained in an earlier decision, the IRSSA was intended to provide genuine
    access to justice for the claimants, as 
[t]
he court has the jurisdiction to ensure that the IRSSA provides both
    procedural and substantive access to justice:
Fontaine #1
, at para. 226;
    see also
N.N. v. Canada (Attorney General)
, 2018 BCCA 105, 6 B.C.L.R. (6th) 335,
at para. 192.

[47]

In addition, the Attorney General of Ontario
    submits the following in his factum:

The access to
    justice considerations here are particularly pressing considering the trauma
    that has been inflicted on Indigenous Peoples and communities stemming from the
    abuse experienced in the Indian Residential School System, the very subject
    matter at the core of these proceedings.

[48]

By providing for a mandatory rule in para. 5(a)
    of the CAP, the nine supervising courts ensured that RFDs brought by individual
    class members would be heard by the supervising court in the jurisdiction where
    a class member lived when the IRSSA was approved. This is likely to be the most
    convenient supervising court for the class member.

[49]

Clearly, access to justice is best served by
    providing that an issue raised by an Ontario claimant that is relevant only to
    members of the Ontario class be dealt with by the Ontario supervising court. An
    Ontario claimant would not expect to incur costs and take the time to travel to
    Vancouver, British Columbia, or any other province or territory, in order to attend
    the hearing of a strictly Ontario issue. Here, the appellants voiced their
    strong preference that their RFD be heard in Ontario. While it might be more
    expeditious from the courts point of view to have the matter heard by the Supervising
    Judge with the most experience and knowledge, wherever that judge is located, in
    many cases this would impose additional costs on class members, thereby
    constituting an impediment to access to justice.

[50]

However, I acknowledge that, in the context of
    the ongoing COVID-19 pandemic, it may be that the appellants will be required
    to attend any hearing by video conference. In that respect, the Eastern
    Administrative Judge correctly noted that, in the present circumstances, there
    is little impact on the appellants access to the hearing, whether the
    Supervising Judge is located in British Columbia or Ontario. That fact,
    however, is not relevant to the interpretation of para. 5(a) and the intent of
    the parties when they entered into the IRSSA. When the IRSSA was negotiated and
    the CAP agreed to, it could not have been in the contemplation of the parties
    that a global pandemic such as COVID-19 would prevent class members from safely
    attending hearings in person. While the existence of COVID-19 could have been
    considered by the Eastern Administrative Judge if para. 5(a) were discretionary,
    such a pandemic has no bearing in the present application of the CAP, given my
    conclusion that para. 5(a) is mandatory.

[51]

For the reasons above, I find that the Eastern
    Administrative Judge erred by referring the appellants RFD to the British Columbia
    Supervising Judge, as a proper interpretation of the CAP determines that para.
    5(a) is mandatory. Therefore, since the appellants are members of the Ontario
    class, it is the Ontario Superior Court of Justice that has the jurisdiction to
    hear and determine their RFD.

(c)

Further Arguments Advanced by the Respondent

[52]

I will now briefly address the remaining arguments
    advanced by the respondent and explain why they do not affect the conclusion I
    have reached as to the proper interpretation of para. 5(a).

[53]

The respondent argues that the language used in the
    introductory portion of para. 5 characterizes the subparagraphs that follow as
    guiding principles that the Administrative Judges can choose to either apply or
    ignore in the exercise of discretion. While I acknowledge that the introductory
    portion of para. 5 reads this way, and that some of the subparagraphs address
    the principles that are to guide discretionary decisions, other subparagraphs 
    notwithstanding the characterization in the introductory portion  set out
    mandatory rules that do not involve the application of principles to the
    exercise of discretion. I do not agree that the introductory portion allows the
    Administrative Judges to disregard mandatory language of these rule-based
    provisions, such as the use of will in para. 5(a).

[54]

The first part of the introductory portion states
    that the Administrative Judges will determine the jurisdiction. The second
    part of the introductory portion states that, in making the determination, the
    Administrative Judges will be guided by the  principles outlined in para. 5.
    Although the introductory portions characterization of some of the following
    subparagraphs is inapt, as explained above, the introductory portion cannot cancel
    out or render meaningless the use of the word will in parts of para. 5, especially
    given that the word may is used in other parts of para. 5. The courts must
    give effect to the use of different words in the different portions para. 5.

[55]

Furthermore, the respondent argues that para. 5(f) is not merely general,
    permissive, and discretionary. In his submission, the French version of the CAP
    supports the position that 5(f) is, in fact, directive.
The
    French version of para. 5(f) of the CAP, titled 
Protocole
    des tribunaux régissant ladministration de lentente

,
provides as follows: les juges
    administratifs
respecteront
également tout autre élément jugé pertinent dans les circonstances
    (emphasis added).
The use of the word respecteront in para. 5(f) is,
    in the respondents submission, a clear directive that requires the
    Administrative Judges to take into account para. 5(f), even where para. 5(a)
    applies.

[56]

I
    disagree. In my view, the French version of the CAP cannot be used to broaden
    the interpretation of the English text of para. 5(f). The court was advised
    that none of the Implementation Orders issued by the nine supervising courts
    contained the French text. Notably, the
French version of the CAP
    was not even appended to the Implementation Order
issued by the Superior
    Court of Québec. Although the French version appears in the court documents
    section of the Internet site for the Residential Schools Settlement,
    accessible online from the Government of Canada Internet site, the record
    before this court does not reveal the source of this translation. In fact, as
    noted by Independent Counsel, it appears that the translation is, in some
    respects, questionable in terms of its quality and faithfulness to the English
    text. In my view, therefore, the French version was not part of the Implementation
    Orders and was not approved by the supervising courts. It is of no assistance
    in interpreting the CAP.

[57]

In
    addition, the respondent advances an alternative argument that para. 7 of the
    CAP provides a complete answer to this appeal. Paragraph 7 reads as follows:

7. Nothing in this protocol shall be construed
    as derogating from the authority of the Administrative Judge in his or her
    capacity as a supervising judge under this Agreement, and for greater clarity,
    neither Administrative Judge shall be precluded from referring any matter to be
    determined to him or herself or to the other Administrative Judge.

[58]

The
    respondent argues that para. 7 gives the Administrative Judges the authority to
    assign to themselves any RFDs, and it therefore overrides all other provisions
    of the CAP, including the principles in para. 5. To develop this argument, the
    respondent relies on a brief comment made by a motions judge on an application
    for extension of time to perfect an underlying appeal in
Tourville
    v. Fontaine
, 2017 BCCA 325. Here, the motions judge determined that
    [i]n light of para. 7 of the [CAP], plainly the question of whether either
    Administrative Judge hears a case cannot be a matter going to the jurisdiction
    of the Administrative Judge:
Tourville
, at
    para. 35.

[59]

In
    my view, this comment in
Tourville
is not
    authority for the interpretation of para. 7 advocated by the respondent. I say
    so for several reasons. First, as stated by the motions judge, the issue of
    jurisdiction was never argued before the Western Administrative Judge in the
    court below:
Tourville
, at para. 33. As a
    result, the basis for the court having taken jurisdiction was not addressed by
    the court below. It was, in fact, unclear to the motions judge whether this was
    a matter to which paras. 5(a) or 5(b) applied. Second, the comment of the
    motions judge was more in the nature of
obiter
.
    The motions judge carried out no analysis of para. 7 and the brief comment was
    made without the benefit of submissions regarding its interpretation and
    application. Third, in any event, the comment speaks to the jurisdiction of
    Administrative Judges, and it is not clear whether it is intended to address
    the jurisdiction of Supervising Judges.

[60]

Properly
    interpreted, para. 7 does not assist the respondent. In the case at bar, the
    Eastern Administrative Judge did not invoke para. 7 as a basis for the exercise
    of jurisdiction. From my reading of para. 7, he did not rely on it, as it is
    merely a provision indicating that, by virtue of being an Administrative Judge,
    the Administrative Judges are not disqualified from exercising their role as Supervising
    Judges of their respective supervising courts. In other words, the Eastern Administrative
    Judge could assign the hearing of a RFD to himself as Ontario Supervising Judge
    without this being considered a conflict of interest or being otherwise
    improper.

[61]

Paragraph
    7 is merely a provision ensuring that nothing in the CAP derogates from the
    authority that Administrative Judges otherwise have as Supervising Judges. Therefore,
    it is not a source of additional authority.

[62]

The
    respondent then argues that the appellants have attorned to the jurisdiction of
    the Supreme Court of British Columbia by having appeared at the hearing for the
    Sunset RFD brought by the Chief Adjudicator of the IAP. This Sunset RFD, heard
    at the Supreme Court of British Columbia on May 29, 2020, was brought to obtain
    guidance concerning the end of the IAP and the eventual destruction of IAP
    documents. After hearing the Sunset RFD, the Western Administrative Judge
    directed that the adjudication of IAP claims will be completed by December 1,
    2020. In the respondents submission, by appearing before the Supreme Court of
    British Columbia on the hearing of the Sunset RFD, the appellants are taken to
    have brought their current RFD before the Western Administrative Judge and to
    have advocated for the relief they were seeking. This, in the respondents
    view, amounts to attornment.

[63]

I
    disagree. As the Eastern Administrative Judge explained, the appellants were
    invited to attend the hearing of the Sunset RFD. Since this Sunset RFD sought
    to schedule the end of the IAP, the appellants were invited because they could have
    an interest in its outcome. Notably, the relief sought by the appellants in
    their own RFD could potentially result in the need to delay the ending of the
    IAP. The fact that the appellants attended pursuant to that invitation did not
    make them parties to the Sunset RFD, nor does it constitute attornment to the Supreme
    Court of British Columbia for the matters they raised in the RFD they had already
    filed before the Ontario Superior Court of Justice.

[64]

Lastly,
    the respondent lists several instances where RFDs involving class members from
    one province were heard by the supervising court of a different province. In
    the respondents submission, this proves that para. 5(a) is not mandatory.

[65]

I
    am not persuaded by this submission. Notably, these cases do not appear to
    address the interpretation of para. 5(a). In any event, the fact that other
    matters may have been dealt with in a different way does not disentitle the
    appellants from their right to insist on the respect of the mandatory
    provisions of the CAP and their right to have their RFD heard by the
    supervising court with jurisdiction.

F.

DISPOSITION

[66]

For
    these reasons, I would allow the appeal and remit the matter to the Ontario
    Superior Court of Justice for hearing. As the Ontario Supervising Judge has
    recused himself, it is up to the Chief Justice of the Ontario Superior Court of
    Justice to assign a different Supervising Judge.

[67]

If
    the parties cannot agree on the issue of costs, I would direct that any party
    seeking costs is to provide brief submissions, not exceeding 3 pages, within 20
    days of the release of this decision. The respondent may provide submissions, also
    not exceeding 3 pages, within 10 days thereafter.

Released: November 2, 2020

JMF

Paul
    Rouleau J.A.

I
    agree Fairburn A.C.J.O.

I
    agree B.W. Miller J.A.


