



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA
    749

DATE: 20180912

DOCKET: M49603 (C65851)

Sharpe J.A. (In Chambers)

BETWEEN

Larry Philip Fontaine
    in his personal capacity and in his capacity as the executor of the estate of
    Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter
    Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum,
    Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan,
    Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor,
    James Fontaine in his personal capacity and in his capacity as the executor of
    the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva
    Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak,
    Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley
    Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney
    Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward
    Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs

and

The Attorney General
    of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican
    Church of Canada, The United Church of Canada, The Board of Home Missions of
    the United Church of Canada, The Womens Missionary Society of the Presbyterian
    Church, The Baptist Church in Canada, Board of Home Missions and Social
    Services of the Presbyterian Church in Bay, The Canada Impact North Ministries
    of the Company for the Propagation of the Gospel in New England (also known as
    The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod
    of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The
    Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The
    Missionary Society of the Anglican Church of Canada, The Missionary Society of
    the Methodist Church of Canada (also known as the Methodist Missionary Society
    of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the
    Anglican Church of the Diocese of Quebec, The Synod of the Diocese of
    Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the
    Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of
    the Diocese of Keewatin, The Synod of the Diocese of QuAppelle, The Synod of
    the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee
    Board of the Presbyterian Church in Canada, The Board of Home Missions and Social
    Service of the Presbyterian Church of Canada, The Women's Missionary Society of
    the United Church of Canada, Sisters of Charity, A Body Corporate also known as
    Sisters of Charity of St. Vincent De Paul, Halifax, also known as Sisters of Charity
    Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Surs de Notre
    Dame-Auxiliatrice, Les Surs de St. François D'Assise, Institut des Surs du
    Bon Conseil, Les Surs de Saint-Joseph de Saint-Hyacinthe, Les Surs de
    Jésus-Marie, Les Surs de l'Assomption de la Sainte Vierge, Les Surs de
    L'Assomption de la Saint Vierge de L'Alberta, Les Surs de la Charité de St.
    Hyacinthe, Les uvres Oblates de L'Ontario, Les Résidences Oblates du Québec,
    La Corporation Épiscopale Catholique Romaine de la Baie James (The Roman
    Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee,
    Surs Grises de Montréall/Grey Nuns Of Montreal, Sisters of Charity (Grey Nuns)
    of Alberta, Les Surs de la Charité des T.N.O., Hôtel-Dieu de Nicolet, The Grey
    Nuns of Manitoba Inc.-Les Surs Grises du Manitoba Inc., La Corporation
    Épiscopale Catholique Romaine De La Baie D'Hudson - The Roman Catholic
    Episcopal Corporation of Hudson's Bay, Missionary Oblates - Grandin Province, Les
    Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of
    Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St.
    Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate -St. Peter's
    Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus,
    The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman
    Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria,
    Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order
    of the Oblates of Mary Immaculate in the Province of British Columbia, The
    Sisters of Charity of Providence of Western Canada, La Corporation Épiscopale
    Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin,
    La Corporation Archiépiscopale Catholique Romaine de St. Boniface, Les
    Missionnaires Oblates Sisters de St. Boniface-The Missionary Oblates Sisters of
    St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La
    Corporation Épiscopale Catholique Romaine de Prince Albert, The Roman Catholic
    Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA,
    Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver, Roman
    Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of
    Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
    Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt.
    Angel Abbey Inc.

Defendants (Responding Parties)

and

Chief
    Adjudicator Indian Residential Schools Adjudication Secretariat

Respondent (Moving Party)

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

Joseph Arvay (Q.C.) and Sandy Lockhart, for the Moving
    Party

Richard Olschewski, for the responding parties, J.W. and
    REO Law Corporation

Catherine Coughlan and Brent Thompson, for the
    responding party, The Attorney General of Canada

Heard: September 12, 2018

REASONS FOR DECISION

INTRODUCTION

[1]

The Chief Adjudicator of the Independent Assessment Process (IAP)
    under the Indian Residential Schools Settlement Agreement (IRSSA) seeks a
    stay of a Direction issued by the Eastern Administrative Judge. The Direction
    at issue prohibits the Chief Adjudicator from continuing his participation in
    three appeals. One of these appeals, the REO Appeal, is before the Supreme
    Court of Canada: see
J.W. and REO Law Corporation v. Attorney General of
    Canada et al.
, SCC Case Number 37725. Two others are before the British
    Columbia Court of Appeal: see
Ronnie Gail Scout v. Attorney General of
    Canada et al.
, BCCA File No. CA44379;
Larry Philip Fontaine et al. v.
    Attorney General of Canada et al.
, BCCA File Nos. CA45085 and CA 45093.
    The REO Appeal is of particular concern because it is scheduled to be heard by
    the Supreme Court of Canada on October 10, 2018. It is expected that the two
    British Columbia appeals will be heard in November and December.

[2]

The Eastern Administrative Judge issued the Direction on his own
    initiative without notice to the Chief Adjudicator or any other party, and apparently
    without any supporting record.

[3]

The Direction was issued on September 5, 2018 and directs the Chief
    Adjudicator to withdraw from the three appeals by September 13, 2018. Given the
    urgency of this matter, an immediate answer from this court is required and
    accordingly these reasons will be relatively brief.

JURISDICTION

[4]

The Respondent the Attorney General of Canada submits that as the
    Direction amounts to an interlocutory case management type order, this Court
    has no jurisdiction to entertain the appeal and, accordingly, that no stay
    should be granted:
Courts of Justice Act
, R.S.O. 1990, c. C.43, ss.
    6(2), 19.

[5]

I recognize that as a single judge, I have no final authority to
    determine the issue of jurisdiction. However, as no stay should be granted in a
    case over which this court lacks jurisdiction, I must deal with the issue.

[6]

The difficulty with the Attorney Generals submission is that the Chief
    Adjudicator is named as a respondent in the REO appeal and has participated as
    a respondent to this point. The Direction requires the Chief Adjudicator to
    withdraw from the appeals and terminate his participation. That amounts to a
    final determination of the Chief Adjudicators rights of participation as a
    party and, in my view, is a final order over which this court does have
    jurisdiction.

STANDING

[7]

The respondents J.W. and REO Law Corporation submit that the Chief
    Adjudicator lacks standing to bring this appeal. While Chief Adjudicator may in
    certain circumstances participate in appeals brought by others, they argue that
    he has no right to commence an appeal in his own right.

[8]

While the Chief Adjudicator may not be able to initiate an appeal from
    an IAP decision in his own right, that is not what is involved here. The Chief
    Adjudicator has been named and recognized as a party in the REO appeal. The
    Direction directly targets the Chief Adjudicators participation as a party in
    the REO appeal and would terminate that participation. In my view, that gives
    rise to an issue affecting the legal rights of the Chief Adjudicator and he
    therefore does have standing to appeal the Direction.

THE TEST FOR A STAY

[9]

It is common ground that the well-established three-part test for a stay
    applies. The applicant must demonstrate that there is a serious issue to be
    tried; that it will suffer irreparable harm if the stay is not granted; and
    that the balance of convenience favours a stay pending the disposition of the
    appeal:
RJR -- MacDonald Inc. v. Canada (Attorney General),
[1994] 1
    S.C.R. 311.

(1)

Serious question to be tried

[10]

I
    am satisfied that the Chief Adjudicators appeal raises arguable grounds of
    appeal and serious questions to be determined by this court.

[11]

First,
    neither the Chief Adjudicator nor any other party was given notice of the
    Eastern Administrative Judges concern regarding the Chief Adjudicators
    participation in the appeals. It is certainly arguable that proceeding without
    notice and without submissions amounted to a denial of procedural justice. It
    is difficult to see why notice and opportunity to address the Eastern
    Administrative Judges concerns could and should not have been given. The
    Direction takes the form of a judicial order and the reasons given to support
    it are in the form of a judicial judgment. Accordingly, it is arguable that the
    usual norms of procedural fairness should have been followed. Of particular
    concern is the finding in the Direction that the Chief Adjudicator is guilty of
    insubordination of the Courts to which he is accountable. This is a finding
    of serious misconduct made against a lawyer and there is a serious issue as to
    whether it should have been made without giving the lawyer an opportunity to
    respond.

[12]

Second,
    the Direction relates to proceedings in other courts. The Chief Adjudicator is
    a respondent or an intervenor to the appeals in those other courts and is
    therefore subject to the control of those courts. The Chief Adjudicator accepts
    that he is subject to the usual limitations imposed upon administrative
    tribunals who participate in proceedings that challenge their decisions as
    outlined in
Ontario (Energy Board) v. Ontario Power Generation Inc.
,
    2015 SCC 44, [2015] 3 S.C.R. 147. He disputes that he has transgressed those
    limits and submits that if he has, that is an issue for courts before whom the
    Chief Adjudicator appears. I agree with the submission that there is an
    arguable issue as to whether the Eastern Administrative Judge erred in assuming
    the authority to determine the nature and scope of the submissions the Chief
    Adjudicator should make in other courts.

[13]

Third,
    there is an issue as to whether the Chief Adjudicator has exceeded the limits
    of participation permitted for a tribunal in proceedings that challenge the
    tribunals decision. The Chief Adjudicator points out that he has regularly
    participated in appeals from decisions of supervising and administrative judges
    and that no issue has been taken with that participation. He strongly contests
    the Eastern Administrative Judges characterization of his participation in the
    three appeals at issue and asserts that no one has challenged the Chief
    Adjudicators submissions in the three courts as being inappropriate. The Chief
    Adjudicator also submits that the Eastern Administrative Judge erred by finding
    that the Chief Adjudicator cannot challenge decisions of supervising and administrative
    judges on appeal, even if he respects the limits the law imposes on the
    arguments administrative tribunals may make. Again, I am satisfied that these
    amount to serious issues to be tried.

(2)

Irreparable harm

[14]

The
    appeal before the Supreme Court of Canada is scheduled to be heard on October
    10. If a stay is not granted and the Chief Adjudicator is required to withdraw
    his factum and participation in that appeal tomorrow, it is difficult to see
    how the matter could be put back on the rails. The effect of denying the stay
    would be, in a practical sense, to deprive the Chief Adjudicator of the
    opportunity to participate in that appeal. It is difficult to see any other
    remedy that would repair that harm. Accordingly I am satisfied that the Chief
    Adjudicator has shown if a stay is denied, he will suffer irreparable harm.

(3)

Balance of convenience

[15]

I
    am satisfied that the balance of convenience favours granting a stay. If a stay
    is refused, the Chief Adjudicators participation in the appeals will be
    terminated and, in one case at least, terminated without hope of resurrection.
    On the other hand if, as the Eastern Administrative Judge thinks, the Chief
    Adjudicators participation exceeds the limits of what is permitted, the courts
    before whom the Chief Adjudicator appears can deal with that problem and limit
    his participation accordingly.

[16]

I
    recognize that granting a stay effectively determines the issue on appeal in
    favour of the Chief Adjudicator insofar as the REO appeal is concerned. It is
    accepted that where a stay would effectively determine the matter at issue, a
    court may go beyond the serious issue to be tried standard and grant the stay
    if the applicant shows a strong likelihood of success:
RJR -- Macdonald
,
    at p. 338. In my view, the Chief Adjudicator has met that standard,
    particularly with respect to the issue of procedural fairness.

[17]

Granting
    the stay will not preclude this court from considering the general issues as to
    the nature of the relationship between the Eastern Administrative Judge and the
    Chief Adjudicator on the appeal.

DISPOSITION

[18]

For
    these reasons, the Direction of the Eastern Administrative Judge is stayed
    pending appeal to this court. As requested by the Chief Adjudicator, the stay
    is effective as of the date of the Direction in order to facilitate retaining
    and payment of counsel for this motion.

[19]

This
    is not a case for costs of the motion.

[20]

In
    the circumstances, the hearing of the appeal shall be expedited and I will case
    manage the appeal to ensure that it is heard as soon as possible.

Robert J. Sharpe
    J.A.


