



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA
    421

DATE: 20180507

DOCKET: C63804

Hoy A.C.J.O., Juriansz and Miller JJ.A.

BETWEEN

Larry Philip Fontaine, et al.

Plaintiffs

and

The Attorney General of Canada, et al.

Defendants/Respondents

In the Matter of the Request for Directions by
IAP Claimant H-15019
Pertaining to St. Annes Indian Residential School

Requestor/Appellant

In the Matter of the Request for Directions by
Edmund Metatawabin
and by IAP Claimant K-10106
Pertaining to St. Annes Indian Residential School

Requestors/Appellants

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

Margaret L. Waddell and Fay K. Brunning, for the
    appellants Claimant H15019, Claimant K-10106 and Edmund Metatawabin

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

Peter C. Wardle, for the intervenor

Diane Soroka, David Schulze and Maryse Décarie-Daigneault,
    for the Independent Counsel

Heard: March 13, 2018

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated April 24, 2017.

Hoy A.C.J.O.:

A.

OVERVIEW

[1]

These appeals arise out of the implementation of the Indian Residential
    Schools Settlement Agreement (2006) (the IRSSA).

[2]

The IRSSA is a settlement agreement that resolved class actions and
    pending individual actions across Canada against the Attorney General of Canada
    and other parties implicated in the tragic history of physical, sexual and
    psychological abuse perpetrated on indigenous children at residential schools.

[3]

Among other things, the IRSSA provides for financial compensation to
    these victims. All eligible class members who had resided in a residential
    school are entitled to payment of a minimum amount, called a Common Experience
    Payment. The IRSSA also provides that class members who allege they suffered
    serious physical, sexual or psychological harm at a residential school may
    apply for additional compensation through the Independent Assessment Process
    (IAP)  a comprehensive, tailor-made, private and confidential inquisitorial
    process established by the IRSSA for the resolution of such claims by specially
    trained adjudicators.
[1]


[4]

To facilitate the adjudicative function, the IAP requires the Government
    of Canada to search for and collect relevant documents and provide a report
    setting out the dates a claimant attended a residential school. Canada must
    provide a person of interest or POI report detailing information about
    alleged perpetrators of abuse, including their jobs at the residential school and
    the date they worked or attended there. Canada is also required to gather
    documents about the residential school that the claimant attended and provide
    the claimant with a report  a School Narrative or School Report  summarizing
    those documents. The IAP also contains provisions entitling the claimant to
    request copies of documents.

[5]

This appeal involves St. Annes Indian Residential School in Fort
    Albany, Ontario. St. Annes was the site of terrible abuse. Between 2000 and
    2003, 154 former students at St. Annes instituted 62 civil actions in
    Cochrane, Ontario against the Attorney General of Canada and other parties
    implicated in the abuse at St. Annes (the Cochrane Actions).

[6]

The appellants, Claimant H-15019, Claimant K-10106 and Edmund
    Metatawabin, former chief of the Fort Albany First Nation, were students at St.
    Annes. By the time of this appeal, H-15019 and K-10106 had received substantial
    awards under the IAP. Mr. Metatawabin did not make a claim under the IAP.

[7]

The appellants brought broad-ranging Requests for Directions before the
    judge designated under the IRSSAs Court Administration Protocol as the Eastern
    Administrative Judge. Among other things, they sought a declaration that Canada
    had breached its disclosure obligations under the IRSSA by refusing to produce
    transcripts of examinations for discovery from the Cochrane Actions (the
    Cochrane Transcripts), and relief for all former students affected by this
    alleged breach and other breaches by Canada of its disclosure obligations.

[8]

The administrative judge dismissed H-15019s Request for Directions
    (RFD). He concluded that Canada had not breached its disclosure obligations
    under the IRSSA by refusing to produce the Cochrane Transcripts to H-15019, who
    was not a plaintiff in any of the Cochrane Actions.

[9]

In the case of K-10106 and Mr. Metatawabins RFD, the administrative
    judge considered two preliminary issues: did they satisfy the test to obtain
    legal standing to bring their RFD and, if so, did the court have jurisdiction
    to provide the broad relief requested? The administrative judge concluded that
    K-10106 and Mr.  Metatawabin did not satisfy the test to obtain standing, the court
    did not have jurisdiction to grant most of the relief they sought, and, of the
    remaining items, there was no good reason for the court to exercise its
    jurisdiction.

[10]

The
    appellants appeal the orders dismissing their RFDs.

[11]

For
    the reasons that follow, I conclude that there is no basis to interfere with
    the administrative judges conclusions that Canada did not breach its
    disclosure obligations in refusing to produce the Cochrane Transcripts. Although,
    in relation to K-10106 and Mr. Metatawabins RFD, I might have taken a
    different view from the judge on the issue of standing, there is no basis to
    interfere with his determinations on the issue of jurisdiction. Accordingly, I
    would dismiss these appeals.

[12]

Below,
    I provide background on the events leading to these RFDs. Then I address, in
    turn, H-15019s appeal and K-10106 and Mr. Metatawabins appeal.

B.

BACKGROUND

[13]

The
    courts play a limited but important role under the IRSSA. Article 18.04 of the
    IRSSA provides for application to the court for directions in respect of the
    implementation, administration or amendment of [the IRSSA]. The right to bring
    a RFD is further contemplated by para. 31 of the Courts orders approving the
    IRSSA. RFDs are brought before one of the two Administrative Judges.

[14]

These
    RFDs are not the first RFDs made to the administrative judge regarding Canadas
    disclosure obligations under the IAP concerning St. Annes. As detailed in his
    reasons, in December of 2013, the administrative judge heard the first RFD on Canadas
    disclosure obligations in relation to St. Annes:
Fontaine v. Canada
    (Attorney General)
, 2014 ONSC 283, [2014] 2 C.N.L.R. 86 (RFD-1). In
    RFD-1, the applicants included 60 St. Annes claimants under the IAP. The focus
    was the over 12,000 documents obtained or created by the OPP in its criminal
    investigation of St. Annes between 1992 and 1996. That investigation
    culminated in charges against seven individuals, all but one of whom were
    convicted of some charge. Canada had obtained some of the documents arising from
    the OPP investigation on a motion brought in 2003 in connection with the
    Cochrane Actions. Its 2003 motion was resolved with the consent of the
    plaintiffs and with the church defendants not opposing.

[15]

In
    his order dated January 14, 2014 (the Order), the administrative judge, among
    other things, ordered the OPP (which did not oppose the order sought) and
    Canada (which did, based on the deemed undertaking rule) to produce these OPP documents.
    The administrative judge concluded that the deemed undertaking rule did not
    apply to OPP documents in the possession of Canada or, if it did, the court
    should abrogate the undertaking to permit Canada to produce them.

[16]

Paragraphs
    6(b) and (c) of the Order are relevant to this appeal. They provide as follows:

6. THIS COURT ORDERS that Canada shall by June 30, 2014,
    produce for the IAP:



(b) the transcripts of criminal or civil proceedings in its
    possession about the sexual and/or physical abuse at St. Annes IRS; and

(c) any other relevant and non-privileged documents in the
    possession of Canada to comply with the proper reading and interpretation of
    Canadas disclosure obligations under Appendix VIII [of the IAP].

[17]

In
    addressing the relief sought for Canadas non-disclosure, the administrative
    judge held that the court had the jurisdiction to re-open settled claims, but
    that jurisdiction must be exercised on a case-by-case basis. He indicated that
    it would be a rare or extraordinary exercise of jurisdiction and there would
    need to be more than a theoretical miscarriage of justice: RFD-1, at paras.
    225 and 228.

[18]

Although
    Canada had not adequately complied with the IRSSA, the administrative judge
    concluded that Canada had simply misconstrued its disclosure obligations. He
    did not find that Canada had acted in bad faith, nor did he make any finding of
    reprehensible, scandalous or outrageous conduct on the part of Canada: RFD-1,
    at para. 213;
Fontaine v. Canada (Attorney General)
, 2014 ONSC 3059, [2014]
    O.J. No. 2400, at para. 26 (RFD-1 Costs).

[19]

In
    the second St. Annes RFD,
Fontaine v. Canada (Attorney General)
, 2015
    ONSC 3611, [2015] 4 C.N.L.R. 51 (RFD-2), heard on May 20, 2015, the
    administrative judge agreed with the applicants that the IAP required Canada to
    update its POI and School Narrative reports for St. Annes to reflect the
    documents he ordered disclosed in his Order and to provide un-redacted copies
    of any court records, including transcripts and pleadings, that relate to
    criminal offences that were alleged to have occurred at St. Annes
[2]
.

[20]

On
    June 30, 2014, Canada reported to the court on its compliance with the Order.
    It indicated that:

·

Pursuant to subparagraph 6(b), Canada would produce the
    transcripts of proceedings in its possession about the abuse at St. Annes, but
    Canada was not in possession of any civil trial transcripts in relation to St.
    Annes because no civil trials took place with respect to it.

·

Pursuant to subparagraph 6(c), Canada would produce pleadings,
    demands for particulars, responses to those demands, notices of discontinuance,
    dismissal orders and other such documents from its St. Annes files.

·

If a claimant were examined for discovery in a previous residential
    school proceeding, Canada would produce the transcripts of the examination for
    the IAP hearing of the claimant, according to Appendix XI of the IAP model.

·

Canada would not otherwise produce transcripts of examinations
    for discovery because they are subject to settlement privilege or to deemed
    undertakings as to confidentiality that arose in the context of pre-IRSSA
    litigation.

C.

H-15019S RFD

The process leading to the order under appeal

[21]

On
    September 23, 2014, H-15019s IAP claim was dismissed. The IAP provides that if
    a claimant is dissatisfied with the adjudicators decision, he or she may ask
    for review by another adjudicator, and if dissatisfied with the review, for a
    further review, referred to as a re-review.

[22]

H-15019
    sought a review by another adjudicator and, on April 2, 2015, the Review
    Adjudicator upheld the original decision to dismiss the claim.

[23]

In
    November 2015, H-15109 filed a RFD seeking court intervention in his IAP claim.
    On February 11, 2016, he amended his claim. Among other things, he sought an
    order that redacted Cochrane Transcripts be produced and his IAP claim be
    re-heard on all the proper evidence. He also sought broad additional relief,
    including the payment of damages, the establishment of a process for review by
    counsel (whose legal fees would be paid by Canada) and the possible re-hearing
    of IAP claims of
all
former students of St. Annes
    whose claims were decided prior to November 1, 2015, and the removal of the
    Department of Justice lawyers who represented Canada in all IAP re-hearing
    processes. H-15019 alleges that the Department of Justice lawyers withheld
    evidence, hid documents, and effected an abuse of process.

[24]

The
    administrative judge adjourned H-15019s RFD to be brought on, if necessary,
    after his re-review hearing.

[25]

The
    Chief Adjudicator of the IAP, in his capacity as the re-reviewing adjudicator,
    ordered a new hearing of H-15019s IAP claim for reasons of procedural
    fairness. Without prejudice to its ability to challenge the legal issues raised
    by the Chief Adjudicators decision, Canada consented to a new hearing for H-15019
    and to the production of revised Narrative and POI Reports for consideration at
    the new hearing.
[3]


[26]

H-15019
    sought guidance from the administrative judge regarding the new hearing. In
    particular, he questioned whether Canada was in compliance with the Order. The
    administrative judge convened a case conference. At the case conference, he
    directed that there should be a hearing in writing to determine whether Canada
    had breached its disclosure obligations under the IRSSA by refusing to produce
    the Cochrane Transcripts. He noted that Canada asserted that the production of
    the Cochrane Transcripts would be contrary to the letter and spirit of the
    IRSSA. The administrative judge indicated that if Canada had breached its
    disclosure obligations, the court would consider in a subsequent hearing
    whether the various extraordinary requests for relief should be granted.

The administrative judges reasons regarding H-15019s RFD

[27]

The
    administrative judge provided several reasons for his conclusion that Canada
    did not breach the IRSSA by refusing to produce the Cochrane Transcripts.

[28]

First,
    he agreed with Canada that the reference to transcripts of civil proceedings in
    his Order did not include any and all transcripts of
discovery
    evidence
from prior civil proceedings. He further noted that his Order
    provides that Canada is only required to produce relevant, non-privileged
    documents, which, he explained, suggests that the reference to transcripts of
    civil proceedings is meant to refer to proceedings where privilege and
    confidentiality issues do not apply. He further noted that transcripts from
    examinations for discovery are protected by the deemed undertaking and can only
    be used in subsequent proceedings in very limited circumstances.

[29]

Second,
    he concluded that the IRSSA does not impose a general obligation on Canada to
    produce examination for discovery transcripts. He reasoned as follows:

The IAP Model created an express obligation to disclose
    examination for discovery transcripts in limited circumstances involving the
    direct participant in the IAP process. It provides that if a claimant gave
    evidence at discovery in a prior civil proceeding and now wishes to enter the
    IAP, he or she must disclose his or her transcript. In essence, a claimant must
    consent to certain uses of the discovery transcript, if the claimant makes an
    IAP claim.

Although as Claimant H15109 notes, Canada is obligated under
    Appendix VIII of the IAP model to produce documents containing allegations of
    abuse, that obligation must be read in context and in a manner that is
    consistent with the IAP Model as a whole. Appendix XI of the IAP Model
    addresses the limited circumstances in which discovery transcripts can be used
    in IAP proceedings. To find that Appendix VIII imposes a general obligation on
    Canada to produce examination for discovery transcripts would be inconsistent
    with Appendix XI.

[30]

Third,
    he noted that H-15019 acknowledged that the deemed undertaking applied to the
    Cochrane Transcripts. He concluded that this was not a case where the deemed
    undertaking should be lifted. H-15019 was a non-party to the St. Annes
    litigation and to the undertakings given. The Supreme Court held in
Juman
    v. Doucette
, 2008 SCC 8, [2008] 1 S.C.R. 157, at para. 36, that consent to
    lift the undertaking will virtually never be given in cases where a non-party
    to the undertaking requests that the undertaking be lifted. The Cochrane
    Transcripts contain extremely sensitive and personal information, and
    disclosure should only be ordered if the interests of justice clearly outweigh
    the harm to the individual who provided the evidence. At his new hearing, H-15019
    will have the benefit of the additional information about St. Annes produced
    pursuant to the Order: all non-privileged, relevant documents in the St. Annes
    civil litigation including pleadings, demands for particulars, responses to
    those demands, and the OPP documents.

[31]

Finally,
    he found that Canada had met the evidentiary burden of showing that the
    discoveries were communications made with a view to reconciliation or
    settlement and, accordingly, the Cochrane Transcripts were covered by
    settlement privilege.

Analysis: H-15019s appeal

[32]

H-15019
    or Independent Counsel argue that: the deemed undertaking rule does not apply
    to the Cochrane Transcripts; if the deemed undertaking rule applies, it was
    overtaken by the terms of the IRSSA and the administrative judges
    interpretations of his Order and the IRSSA were clearly unreasonable; if the
    deemed undertaking rule applies to the Cochrane Transcripts and was not
    overtaken by the IRSSA, the administrative judge erred by failing to lift it;
    and the administrative judge had no evidentiary basis for concluding that
    discoveries were communications made with a view to reconciliation or
    settlement and, in any event, erred in law in finding that settlement privilege
    could extend to discovery transcripts.

[33]

Below,
    I first address Canadas preliminary arguments that (1) this appeal has been
    rendered moot because a re-hearing of H-15019s IAP application was conducted
    between the date the administrative judge released his reasons and the hearing
    of this appeal and he received a substantial award, and (2) to the extent not
    rendered moot, H-15019 does not meet the test for standing in
Fontaine v.
    Canada (Attorney General)
, 2015 BCSC 1386, [2015] B.C.W.L.D. 6683 (the
    Cachagee RFD) to seek circulation of the Cochrane Transcripts into the IAP at
    large.

[34]

Then
    I turn to the arguments of H-15019 and Independent Counsel.

(1)

A preliminary issue: Is H-15019s appeal moot, and, if so, should the
    court exercise its discretion to hear his appeal? Does he have standing to
    pursue this appeal?

[35]

The
    re-hearing of H-15019s IAP claim was conducted on July 12, 2017, after the
    administrative judge released his reasons dismissing his RFD, and with the
    benefit of the additional information about St. Annes that had been produced
    pursuant to the Order. H-15019 reasserted that he had suffered prolonged sexual
    abuse by a particular priest. Canada supported his claim. He was awarded
    compensation totaling $183,556.

[36]

If,
    subsequent to the initiation of a proceeding, events occur which affect the
    relationship of the parties so that no present live controversy exists which
    affects the rights of the parties, the case is said to be moot. A court may
    nonetheless elect to address a moot issue if the circumstances warrant:
Borowski
    v. Canada (Attorney General)
, [1989] 1 S.C.R. 342, at p. 353.

[37]

In
    relation to H-15019, the only issue determined by the administrative judge (and
    the only issue argued on H-15019s appeal) was whether Canada was required to
    disclose the Cochrane Transcripts. I agree with Canada that determining whether
    the administrative judge erred in concluding H-15019 was not entitled to
    disclosure of the Cochrane Transcripts will have no practical effect on H-15019s
    rights. As indicated above, H-15019s IAP claim has been re-heard. At the
    re-hearing, the adjudicator accepted his story and determined that he had
    suffered a level of sexual abuse that entitled him to the highest level of
    compensation. I do not see how further disclosure could impact him.
[4]
Hence, his RFD, to the extent it seeks relief personal to him is moot.

[38]

However,
    in my view, the circumstances warrant the court hearing H-15019s appeal.
    Unquestionably, an adversarial relationship continues to prevail between the
    appellants and Canada. All appear, represented by counsel. Further, judicial
    economy favours determining these issues: H-15019s appeal has been briefed and
    argued; and K-10106 and Mr. Metatawabin also sought an order for disclosure of
    the Cochrane Transcripts in their RFD, the administrative judge invoked his
    determination regarding disclosure of the Cochrane Transcripts in his reasons
    on their RFD, and I conclude below that at least K-10106 had standing.
    Moreover, H-15019 sought relief in relation to other affected St. Annes
    survivors, and not just himself. In the circumstances, I do not think that
    determining the issues would be viewed as a departure from the courts
    traditional role.

[39]

I
    reject Canadas argument that H-15019 no longer has standing and we should
    decline to hear his appeal on that basis. He had standing when he brought his
    RFD. Although intervening events may remove the very foundation of the
    controversy between parties, such as in
Borowski
, this has not happened
    here. Many of the circumstances that existed when H-15019 brought his RFD
    continue to exist, such as those that warrant the court hearing the appeal
    under the mootness analysis. I therefore move beyond these preliminary issues
    to consider the appeal on its merits.

(2)

Does the deemed undertaking rule apply to the Cochrane Transcripts?

[40]

In
Doucette
, the Supreme Court explained the rationale and scope of the
    deemed (or implied) undertaking rule. The root of the undertaking is the
    statutory compulsion to participate in pre-trial discovery:
Doucette
, at
    para. 20. The rule provides that evidence compelled during pre-trial discovery
    from a party to civil litigation can be used by parties only for the purpose of
    the litigation for which it was obtained, unless and until the scope of the
    undertaking is varied by judicial order or a situation of immediate and serious
    danger emerges:
Doucette
, at paras. 1 and 3. In this way, the rule
    provides a measure of protection to the examinees privacy interest. It also provides
    some assurance to the examinee that his or her documents and answers will not
    be used for a collateral purpose. This encourages a more complete and candid
    discovery:
Doucette
, at paras. 25-26.

[41]

Ontario
    is among the jurisdictions that have enacted rules more or less codifying the
    common law deemed undertaking rule. Rule 30.1.01 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 provides that the parties and their lawyers are deemed to
    undertake not to use discovery evidence for any purposes other than those of
    the proceeding in which the evidence was obtained.

[42]

H-15019
    disputes that he acknowledged before the administrative judge that the deemed
    undertaking applies to the Cochrane Transcripts. He argues that the Cochrane
    Actions are the same proceeding as IAPs under the IRSSA, and that the
    administrative judge made this finding in RFD-1. Therefore, the deemed
    undertaking rule does not restrict the use of the Cochrane Transcripts in IAPs
    under the IRSSA.

[43]

Independent
    Counsel advance a different argument. They argue that the deemed undertaking in
    r. 30.1.01(3) of the
Rules of Civil Procedure
does not apply because
    r. 30.1.01(7) specifically permits the use of discovery evidence in subsequent
    proceedings in accordance with r. 31.11(8), and r. 31.11(8) applies in these
    circumstances.

[44]

I
    reject these arguments.

[45]

H-15019
    did not provide a copy of his submissions before the administrative judge
    regarding the applicability of the deemed undertaking rule. However, assuming
    that the administrative judge was mistaken that H-15019 acknowledged that the
    deemed undertaking applies to the Cochrane Transcripts, I do not agree that any
    and all IAPs of St. Annes survivors are the proceeding in which the evidence
    was obtained, within the meaning of r. 30.1.01(3). The discovery evidence at
    issue was obtained in 62 distinct civil actions instituted in Cochrane by 154
    survivors of St. Annes. H-15019 was not a plaintiff in any of the Cochrane
    Actions. He argues that the evidence of a survivor obtained in a civil
    proceeding commenced by that survivor can be used for the purpose of an IAP of
    a different survivor because they are the same proceeding. In my view, they are
    clearly not the same proceeding. They involve different claimants. To the
    extent that the administrative judge concluded otherwise in RFD-1, I respectfully
    disagree with him.
[5]

[46]

Rule
    30.1.01(7) provides that the deemed undertaking in r. 30.1.01(3) does not
    prohibit the use of evidence or information in accordance with subrule 31.11(8)
    (subsequent action). Rule 31.11(8) provides as follows:

(8) SUBSEQUENT ACTION  Where an action has been discontinued
    or dismissed and another
action involving the same
    subject matter is subsequently brought between the same parties or their
    representatives
or successors in interest, the evidence given on an
    examination for discovery taken in the former action may be read into or used
    in evidence at the trial of the subsequent action as if it had been taken in
    the subsequent action. [Emphasis added.]

[47]

Rule
    31.11(8) is inapplicable. Most of the Cochrane Actions settled before the advent
    of the IRSSA. No other actions could be or were subsequently brought in
    relation to the subject matter of those settled actions. As to the remaining
    Cochrane Actions, if an IAP claim is an action within the meaning of that
    term in r. 31.11(8), the actionsubsequently brought is the IAP claim made by
    a particular survivor, and not, as Independent Counsel argues, any and all IAP
    claims made under the IRSSA. The parties in any and all IAPs would not be the
    same as in a civil action commenced by a particular St. Annes survivor.
    Similarly, the subject matter would not be the same. The subject matter would
    be different abuse perpetrated on different persons, possibly by different
    perpetrators.

(3)

Was the administrative judges interpretation of the Order and the IRSSA
    unreasonable?

[48]

The
    interpretation of the IRSSA is a question of mixed fact and law reviewable for
    palpable and overriding error:
Canada (Attorney General) v. Fontaine
,
    2017 SCC 47, [2017] 2 S.C.R. 205, at para. 35 (SCC Archives). As the Supreme
    Court noted, the factual matrix looms large in ascertaining the meaning of
    this particular contract.

[49]

Clearly,
    a deferential standard of review also applies to the administrative judges
    interpretation of his own Order, issued to ensure Canadas compliance with its
    disclosure obligations under the IRSSA.

[50]

I
    am not persuaded by the submissions of H-15019 or Independent Counsel that
    there is any basis to interfere with the administrative judges interpretation
    of the IRSSA or his Order.

[51]

The
    IAP scheme is set out in Schedule D to the IRSSA. Appendix VIII to Schedule D
    is entitled Government Document Disclosure. After setting out Canadas
    obligation to search for, collect and provide reports setting out the dates the
    claimant attended a residential school and about the alleged perpetrators of
    abuse, Appendix VIII provides, in relevant part, that:

Upon request, the Claimant or their lawyer will receive copies
    of the documents located by the government, but information about other
    students or other persons named in the documents (other than alleged
    perpetrators of abuse) will be blacked out to protect each persons personal
    information, as required by the Privacy Act.

The government will also gather documents about the residential
    school the Claimant attended, and will write a report summarizing those
    documents. The report and, upon request, the documents will be available for
    the Claimant or their lawyer to review.

[52]

Appendix
    XI of Schedule D, entitled Transition from Litigation or ADR Projects, and
    Priorities for Access to the IAP, sets out specific rules for pre-existing
    evidence.

[53]

It
    provides that where a claimant who has given evidence in litigation proceedings
    (including participation in an examination for discovery), wants to and is
    eligible to enter the IAP, the record of the previous evidence must be provided
    to the adjudicator in the IAP. The adjudicator may use it as a basis to
    question the claimant and the claimant may adopt their previous evidence rather
    than provide a narrative account at the hearing.

[54]

H-15019
    and Independent Counsel essentially argue that the administrative judge erred
    in interpreting what they say is Canadas unqualified disclosure obligations in
    Appendix VIII in light of its express obligations in Appendix XI regarding when
    discovery transcripts can be used in IAP proceedings.

[55]

The
    administrative judge did not err in his approach. Interpretation of written
    contractual provisions must be grounded in the text and read in light of the
    entire contract: see SCC Archives, at para. 37. He properly read the general
    language in Appendix VIII in light of Appendix XI, which sets out specific
    rules for the use of pre-existing evidence in the IAP.

[56]

Moreover,
    the fact that strict confidentiality of the IAP was intended and that nobody
    except the survivor was meant to have access to the story of the survivor are
    surrounding circumstances that may be considered in interpreting the IRSSA: SCC
    Archives, at paras. 42-43. The interpretation argued by H-15019 would
    potentially permit others to have access to the story of a survivor.

[57]

The
    existence of the deemed undertakings is a further surrounding circumstance that
    may be considered in interpreting the IRSSA. These surrounding circumstances
    buttress the reasonableness of the administrative judges interpretation of the
    IRSSA.

[58]

Further,
    the administrative judges interpretation of his own Order is not unreasonable.
    It is grounded in the wording of his Order, and it is consistent with his
    interpretation of the IRSSA.

[59]

Accordingly,
    the deemed undertaking rule was not displaced by the IRSSA or the Order.

(4)

Did the administrative judge err by failing to lift the deemed
    undertaking?

[60]

Rule
    30.1.01(8) of the
Rules of Civil Procedure
recognizes that the court
    may order that the deemed undertaking in r. 31.1.01(3) does not apply:

30.1.01(8) ORDER THAT UNDERTAKING DOES NOT APPLY  If satisfied
    that the interest of justice outweighs any prejudice that would result to a
    party who disclosed evidence, the court may order that subrule (3) does not
    apply to the evidence or to information obtained from it, and may impose such
    terms and gives such directions as are just.

[61]

H-15019
    and Independent Counsel essentially argue that in concluding that disclosure
    should not be ordered the administrative judge erred in his assessment of both
    the prejudice to examinees and the interests of justice.

[62]

H-15019
    and Independent Counsel argue that there would be no prejudice to the examinees
    if the deemed undertaking rule were lifted because the examinees privacy
    interests are adequately protected by the requirement in Appendix VIII of the
    IAP that information about other students or other persons named in the
    documents (other than alleged perpetrators of abuse) will be blacked out to
    protect each persons personal information.

[63]

While
    the administrative judge did not specifically address this argument in the
    reasons that are the subject of this appeal, he rejected it in an earlier
    decision regarding the disposition of documents created within the IAP:
Fontaine
    v. Canada (Attorney General)
, 2014 ONSC 4585, 122 O.R. (3d) 1 (SCJ
    Archives). On appeal, this court noted that the administration judge accepted
    that preservation of records, even in an anonymized form, could potentially
    result in identification of perpetrators and survivors in small Aboriginal
    communities, causing lasting and irreparable harm to future generations:
Fontaine
    v. Canada (Attorney General)
, 2016 ONCA 241, 130 O.R. (3d) 1, at para. 69
    (OCA Archives). And in SCC Archives, at para. 47, the SCC recognized the
    administrative judges concern and the risk that disclosure could result in
    deep discord within communities, noting the evidence of one claimant that her
    community was so small and close that she could be easily identified even
    were her name omitted. At para. 46, the Supreme Court also characterized the
    nature of the information disclosed during IAPs as the most sensitive and
    private in nature. This description is equally applicable to information in
    the Cochrane Transcripts. The provision for redaction in the IAP is not a basis
    to interfere with the administrative judges decision not to lift the deemed
    undertaking.

[64]

H-15019
    also argues that there was no evidentiary foundation for the administrative
    judges comment at para. 19 of the reasons below that, in any event, the
    informational content of the [Cochrane Transcripts] ...is more or less
    available from the publicly available court documents in the civil cases or by
    the 12,000 Cochrane documents already produced. In making this argument, I
    take Claimant H-15019 to suggest that the administrative judge erred in his
    assessment of the interests of justice in lifting the undertaking.

[65]

However,
    I note that in the portion of the administrative judges reasons where he
    specifically considers whether he should exercise his discretion to lift the
    deemed undertaking, the administrative judge simply writes that Claimant H-15019
    will have the benefit of the additional information about St. Annes produced
    pursuant to the Order: all non-privileged, relevant documents in the St. Annes
    civil litigation including pleadings, demands for particulars and responses to
    those demands, and the OPP documents. There is no doubt that these documents
    provided considerable additional information. Having presided at RFD-1 and
    RFD-2, the administrative judge presumably had a good sense of their reach. In
    my view, he was entitled to consider the fact that considerable information was
    already available to Claimant H-15019 in determining whether the interests of
    justice outweighed the prejudice to the examinees of setting aside the deemed
    undertaking and providing further disclosure to him. His assessment of the
    interests of justice was not infected by a palpable and overriding error.

[66]

Doucette
cautions at para. 38 that, an undertaking should only be set aside in exceptional
    circumstances. As the administrative judge highlighted in his reasons, this is
    a case where a non-party sought to lift the undertaking. In my view, the
    administrative judge gave sufficient weight to all relevant considerations and
    his exercise of discretion not to order disclosure was not based on an
    erroneous principle. There is no basis for this court to interfere with his
    exercise of discretion.

(5)

Are the Cochrane Transcripts protected by Settlement Privilege?

[67]

Evidence
    of communications exchanged by parties with the intent of settling a dispute is
    prima facie inadmissible in litigation. The purpose of this common law
    evidentiary rule is to promote honest and frank discussions between the parties
    and thereby promote settlement: see
Sable Offshore Energy v. Ameron
    International Corp.
, 2013 SCC 37, [2013] 2 S.C.R. 623, at paras. 2, 12 and
    13;
Union Carbide Canada Inc. v. Bombardier Inc.
, 2014 SCC 35, [2014]
    1 S.C.R. 800, at paras. 1, 31, 34 and 37.

[68]

At
    para. 34 of his reasons, the administrative judge wrote:

In 2005, the parties to the civil proceedings negotiated a
    settlement, and it was a term of this settlement that if a plaintiff had not
    already been examined for discovery, then he or she would be examined for
    discovery for the purposes of negotiating the quantum of the settlement. All
    the examinations for discovery were made part of the settlement process.

[69]

At
    para. 124, the administrative judge agreed with Canada that the Cochrane
    Transcripts were covered by settlement privilege and disagreed with Claimant
    H-15019 that Canada had not met the evidentiary burden of showing that the
    discoveries were communications made with a view to settlement.

[70]

As
    indicated above, H-15019 and Independent Counsels submissions are two-fold:
    (1) there was no evidentiary basis for the facts found by the administrative
    judge at para. 34 of his reasons and, in any event, (2) settlement privilege
    covers negotiations, and does not extend to examinations for discovery, which
    by their nature are for the purpose of eliciting evidence as to facts.

[71]

I
    have concluded that there is no basis to interfere with the administrative
    judges assumption that the deemed undertaking rule applied to the Cochrane
    Transcripts; his conclusion that the IRSSA and his Order do not override the
    deemed undertaking rule and, except as provided in Appendix XI, provide for
    disclosure of the Cochrane Transcripts; or his decision not to lift the deemed
    undertaking. Accordingly, I need not determine whether there was an adequate
    basis for the administrative judges finding at para. 34 and leave for another
    day whether examinations for discovery [that were] part of the settlement
    process, as described by the administrative judge at para. 34 of his reasons,
    are covered by settlement privilege because they are connected to the
    negotiations.

[72]

Accordingly,
    I would dismiss H-15019s appeal.

D.

K-10106 AND Mr. METATAWABINS RFD

Background regarding K-10106 and Mr. Metatawabin

[73]

K-10106s
    IAP claim that she was abused by another student at St. Annes was resolved in
    June 2012  several years before this RFD was brought. She received a
    substantial compensation award.

[74]

Mr.
    Metatawabin is a former Chief of Fort Albany First Nation and an executive
    member of Peetabeck Keway Keykaywin Association (PKKA), the St. Annes
    Survivors Association. He has been involved for decades in seeking to address
    the abuse at St. Annes.

[75]

Mushkegowuk
    Council, the governance body for the seven First Nations in Ontario that mostly
    border James Bay, Hudson Bay and west of James Bay, requested that he bring
    forward the RFD on behalf of the former students of St. Annes.

The scope of their RFD

[76]

K-10106
    and Mr. Metatawabins RFD includes allegations that K-10106s former lawyers
    had not disclosed that they acted for the Catholic Church entities that
    operated St. Annes in the Cochrane Actions and other litigation, and that they
    knew of the existence of the documents that were the subject of RFD-1 but never
    sought directions from the court to require their disclosure. They also allege
    that the law firm that acted for another claimant (who did not join in the RFD)
    should have, but failed to, bring a request for directions to compel the filing
    of proper disclosure for that claimants IAP hearing.

[77]

K-10106
    and Mr. Metatawabin sought extensive, far-reaching relief in their RFD,
    including:

·

The re-opening of the deadline for the filing of IAP claims by
    former students of St. Annes;

·

A determination of why Canada did not disclose the documents that
    were the subject of RFD-1;

·

An order compelling Canada to produce the Cochrane Transcripts,
    in redacted form, for the IAP;

·

An order entitling all St. Annes survivors whose claims were
    determined before disclosure was made in accordance with RFD-1 and RFD-2 to a
    re-hearing of their claims, together with compensation for claimant counsel
    that is not contingent upon outcome, and compensation to PKKA personnel who
    assist in the process;

·

An order that Canada make admissions, or the Chief Adjudicator
    make findings, from documents that have been disclosed, with respect to
    student-on-student abuse, as they say is contemplated by Appendix VIII;

·

Directions as to the process to seek damages against the lawyers
    for breach of contract, breach of fiduciary duty and/or unjust enrichment; and

·

Various funding, including an order that Canada provide funding
    to PKKA in trust for aboriginal cultural and health support programs of
    $500,000 per year for three years.

The administrative judges reasons on the standing and
    jurisdiction issues

[78]

The
    administrative judge noted that para. 31 of the Courts orders approving the
    IRSSA contemplates that specified persons and entities or such other person or
    entity as the court may allow, after fully exhausting the dispute resolution
    mechanisms contemplated in the [IRSSA], may apply to the court for directions
    in respect of implementation, administration or amendment of the IRSSA on
    notice to all affected parties.

[79]

K-10106
    and Mr. Metatawabin are not among the specified persons or entities. Therefore,
    the question was whether the administrative judge should grant them standing to
    bring their RFD.

[80]

He
    applied the three-part test for standing to bring an RFD formulated by Brown J.
    in the Cachagee RFD: (1) is there a serious issue to be tried; (2) is the
    person or entity directly affected by or does it have a genuine interest in the
    issues raised; and (3) is there another reasonable and effective manner by
    which the issue can be brought before the court?

[81]

The
    administrative judge concluded that they did not satisfy any of the elements of
    the Cachagee test. While K-10106 and Mr. Metatawabin raise serious issues to be
    tried, the serious issues are not their issues but rather personal issues
    between an IAP claimant and his or her lawyer and these personal complaints are
    outside the purview of the IRSSA and the IAP. Further, they have no personal
    interest in the serious issues raised in the RFD. Finally, there is a
    reasonable and effective manner by which their claims of solicitors negligence
    and breach of fiduciary duty can be brought before the court: normative
    litigation outside of the IRSSA.

[82]

He
    acknowledged that Mr. Metatawabin had previously been granted standing in other
    RFDs, but his standing had not been challenged in those RFDs and there were
    others who had standing to advance the RFD.

[83]

The
    administrative judge went on to conclude that, in any event, the court did not
    have, or should not exercise, jurisdiction to grant the relief sought given:

·

It has already been judicially determined that the court does not
    have jurisdiction to vary the deadline for filing IAP claims
:
Myers v.
    Canada (Attorney General)
, 2015 BCCA 95, 70 B.C.L.R. (5th) 338.

·

It is not the courts role under the IRSSA or under its general
    jurisdiction to conduct investigations. Moreover, why some of these documents
    were not initially disclosed was investigated and explained in RFD-1 and RFD-2.

·

Their concerns regarding the Cochrane documents are addressed in
    his reasons on H-15019s RFD.

·

The re-opening of settled IAP claims was addressed in RFD-1.

·

The court has no jurisdiction to order Canada to make admissions
    or to order the Chief Adjudicator to make certain findings of fact: RFD-1, at
    paras. 14 and 244.
[6]


·

The requests for relief regarding the lawyers go beyond the
    courts jurisdiction in relation to the IRSSA and should be brought pursuant to
    the
Rules of Civil Procedure
, in the Superior Court of Justice.

·

There is nothing in the IRSSA that envisions providing funding as
    sought by PKKA and the requested relief would amount to an amendment of the
    IRSSA.

K-10106 and Mr. Metatawabins position

[84]

K-10106
    and Mr. Metatawabin agree that the administrative judge applied the correct
    test in determining whether they should be granted standing. They argue that he
    erred in his application of that test.

[85]

They
    say that he erred by focusing on their complaints regarding the lawyers. The
    predominate relief they requested was for the court to issue directions with
    respect to, and provide a remedy to, all St. Annes survivors whose IAP claims
    were based on an incomplete and, therefore, false factual foundation.

[86]

They
    argue that there is no other reasonable and effective manner in which the
    issues they raise can be brought before the court. They submit that in concluding
    otherwise, the administrative judge failed to consider the particularly
    vulnerable nature of the St. Annes survivors, the fact that Mr. Metatawabin
    and PKKA are their chosen representatives, and the difficulty of notifying the
    St. Annes survivors of Canadas violations of the IRSSA. They say that
    because of the confidentiality of the IAP process, only the Chief Adjudicator
    is in a position to notify claimants.

[87]

Finally,
    they argue that the administrative judge wholly disregarded the United Nations
    Declaration on the Rights of Indigenous Peoples, which, it argues, confirms the
    right of PKKA, as the chosen representatives of the St. Annes survivors, to
    bring its RFD.

[88]

As
    to the issue of jurisdiction, K-10106 and Mr. Metatawabin argue that, in light
    of Canadas non-disclosure, the court has ample jurisdiction to direct an
    independent review of all claims of St. Annes survivors based upon the full
    evidentiary record with each claimant entitled to elect a full rehearing should
    he or she choose to do so, and to order Canada to pay the costs of independent
    legal advice and health support services for each such claimant. Their
    submissions make clear that their RFD seeks more than directions about a
    process whereby individual St. Annes survivors might advance requests for
    case-by-case re-hearings.

[89]

On
    appeal, K-10106 and Mr. Metatawabin do not challenge any of the administrative
    judges other findings on the jurisdiction issue.

Analysis

[90]

I
    agree with K-10106 and Mr. Metatawabin that, given the broad scope of their
    RFD, the administrative judges standing analysis was tainted by his focus on
    their complaints regarding the lawyers.

[91]

As
    indicated above, K-10106 and Mr. Metatawabin seek an order that all St. Annes
    survivors are entitled to a full re-hearing and K-10106 is a St. Annes
    survivor whose claim was determined before the additional disclosure that was
    the subject of RFD-1 and RFD-2 was produced. She is directly affected or has a
    genuine interest in that issue, and in the issue of the production of the
    Cochrane Transcripts. Mr. Metatawabin, who did not make a claim under the IAP,
    is not personally affected by the request for re-hearings. However, he is an
    executive member of PKKA, which represents St. Annes survivors, and sought
    funding on behalf of PKKA. In that sense, he might be said to have a genuine interest.
    Further, unlike the issues relating to the lawyers, the issue of entitlement to
    re-hearings is not an issue that should be litigated outside the IRSSA. I would
    have granted standing to K-10106, and, possibly, to Mr. Metatawabin. However,
    this does not affect the outcome of this appeal.

[92]

In my view there is no basis to interfere with the administrative
    judges conclusion that the court does not have, or should not exercise, its
    jurisdiction to order the broad entitlement to re-hearings that K-10106 and Mr.
    Metatawabin seek, or to order a re-hearing of K-10106s claim.

[93]

As
    the administrative judge noted, he had determined in RFD-1 that although the
    court had the jurisdiction to re-open settled claims as a result of a breach of
    Canadas disclosure obligations, that jurisdiction must be exercised on a
    case-by-case basis and that, in each case, more than a theoretical miscarriage
    of justice must be shown. RFD-1 was not appealed.
[7]
Mr. Metatawabin has been involved in the litigation regarding the Cochrane
    Transcripts for many years. He was involved in RFD-1 and swore an affidavit concerning
    the documents at the heart of RFD-1 which requested, on behalf of PKKA, that
    the court order an independent review of all of the St. Annes cases.
[8]


[94]

The
    administrative judge considered whether the court should exercise its
    jurisdiction to order a re-hearing in the specific case of K-10106. He
    concluded that, in the case of K-10106, there is no reason to believe that the
    outcome of the IAP process was unjust or that the extraordinary circumstances
    for court intervention exist. In particular, he found that there is no basis
    to believe that the absence of the documents affected the outcome of her claim.
    K-10106 was successful and received a substantial award within the parameters
    of the IAP. The amount of her award was determined by her own story, her own
    experience, her own injuries, and this evidence was before the Adjudicator
    because Claimant K-10106 had the courage and perseverance to tell her story.

[95]

There
    is no basis to interfere with his conclusion that the court should not exercise
    its case-by-case jurisdiction in the case of K-10106.

[96]

Accordingly,
    I would dismiss K-10106 and Mr. Metatawabins appeal.

E.

Disposition and Costs

[97]

For
    the reasons above, I would dismiss these appeals.

[98]

Canada
    does not seek costs of the appeals against the appellants. However, at the
    hearing, it suggested that it would seek costs against counsel for the
    appellants personally because of the allegations about Canada and its lawyers
    conduct. The appellants
[9]
and Independent Counsel indicated that they would seek costs, regardless of the
    outcome of the appeals. If Canada seeks costs against counsel for the
    appellants personally, it should provide written submissions within 14 days. In
    those submissions, it should also address its position in relation to the
    appellants and Independent Counsels request for costs.

[99]

Appellants
    counsel and Independent Counsel may respond to those submissions within 14 days
    thereafter.

Released: AH MAY 07 2018

Alexandra Hoy
    A.C.J.O.

I agree R.G. Juriansz
    J.A.

I agree B.W. Miller
    J.A.







[1]
Fontaine v. Canada (Attorney General)
, 2017 ONCA 26, 137 O.R. (3d) 90, at
    paras. 1 and 51 (Spanish IRS)



[2]
As well as Bishop Horden Indian Residential School.



[3]
On January 17, 2018, the western administrative judge allowed Canadas RFD
    regarding this issue and concluded that procedural fairness was not an implied
    term in the IRSSA:
Fontaine v Canada (Attorney General)
, 2018 BCSC 63, [2018]
    B.C.J. No. 55. IAP claims cannot be re-opened by the Chief Adjudicator and his
    designates, as H-15019s IAP claim was re-opened, on the basis of a denial
    procedural fairness uncovered by new evidence. This decision did not affect
    already re-opened IAP claims, such as H-15019s claim.



[4]
The IAP awards compensation points for sexual abuse and consequential harms on
    a scale of 1 to 5. It also awards compensation for severe physical abuse, other
    wrongful acts, loss of opportunity, and future care. Compensation points can be
    increased by 5-15% for aggravating factors. The adjudicator believed H-10519s
    account and gave him the highest level of compensation points, and the largest aggravating
    factor allowance. The categories in which H-15019 did not receive the top level
    of compensation points involved the ongoing effects of the terrible abuse
    H-15019 suffered. Disclosure of the Cochrane Transcripts would not have
    affected these categories.



[5]
To be clear, the deemed undertaking rule would not prevent the use of discovery
    evidence of a survivor in his or her own IAP. Indeed, as discussed below, Appendix
    XI of the IAP specifically recognizes this.



[6]
See also
Fontaine v. Canada (Attorney General)
, 2018 ONSC 103, [2018]
    O.J. No. 20 where the administrative judge addresses this issue at length.



[7]
The administrative judges findings on jurisdiction were also dispositive of H-15019s
    RFD, to the extent he sought relief not specific to H-15019.



[8]
He also requested, on behalf of the PKKA, that the court determine why Canada
    did not disclose the documents that were the subject of RFD-1. Relief that he
    again seeks in this RFD.



[9]
The appellants made this submission in written submissions immediately following
    the hearing of the appeal.


