Sep 1, 2020

COURT OF APPEAL SUMMARIES (August 24 – 28, 2020)

Fontaine v. Canada (Attorney General), 2020 ONCA 540 (CanLII)

[Pepall J.A. (Motion Judge)]

Counsel:

Joanna Birenbaum and Chris Grisdale, for the moving party National Centre for Truth and Reconciliation

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

Stuart Wuttke and Jeremy Kolodziej, for the responding party the Assembly of First Nations

Catherine Boies Parker and John Trueman, for the responding party the Chief Adjudicator

Keywords: Indian Residential Schools Settlement Agreement, Civil Procedure, Stay Pending Appeal, Directions, Fontaine v. Canada (Attorney General), 2014 ONSC 4585, aff’d 2016 ONCA 242, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Zafar v. Saiyid, 2017 ONCA 919, Longley v. Canada (Attorney General), 2007 ONCA 149

Facts:

This motion for a stay and various procedural directions arises in the context of the Indian Residential Schools Settlement Agreement (“IRSSA”). The IRSSA resulted in the establishment of the Independent Assessment Process (“IAP”), under which former students who suffered physical, sexual, or psychological abuse could claim compensation. The IAP is administered by the Indian Residential Schools Adjudication Secretariat (the “Secretariat”) under the direction of the Chief Adjudicator.

Over 38,000 claims have been processed in the IAP and over $3 billion disbursed to former students. The Secretariat uses a database known as SADRE to case-manage the IAP claims. The IAP is coming to an end, and the Secretariat is to be closed and all claims adjudicated by March 31, 2021.

Before Perell J., the Eastern Administrative Judge, the Chief Adjudicator sought directions on the disposition of certain records (“Non-Claim Records”) held by the Secretariat. He made a proposal to archive most of them with the appellant, the National Centre for Truth and Reconciliation (“NCTR”). This proposal was supported by the appellant and others, but not by the respondent, the Attorney General of Canada (“Canada”).

A number of orders have been made by the supervising courts in the course of the administration of the IRSSA. Three that are the subject matter of the stay motion have ordered that the SADRE database be destroyed. These courts have also issued various sunset orders governing the orderly closure of the IAP claims process, the expiry of the Chief Adjudicator’s mandate, and the wind-up of the Secretariat. The process to effect the destruction of SADRE could begin on December 31, 2020, and the Secretariat itself is to close on March 31, 2021.

The appellant appealed from one of the orders and asked that: the Static Reports be included in the Adjudicator’s Final Report; the Chief Adjudicator be permitted to generate further aggregate Static Reports from the SADRE database, subject to the requirement that these Reports not identify any IAP claimants or alleged perpetrators; and the Static Reports could be archived with the appellant, Library and Archives Canada, or any other archive. In a nutshell, the appellant’s primary position on appeal is that invaluable information will be permanently lost if the Static Reports are destroyed. Canada’s position is that the appellant’s request to halt the destruction of SADRE is non-justiciable, a collateral attack on the In Rem order already made, and amounts to re-litigation.

Issues:

Should the order authorizing the destruction of SADRE be stayed pending appeal?

Holding:

Motion dismissed.

Reasoning:

No. On a motion for a stay pending appeal, the court is to consider: whether the appeal raises a serious question to be tried; whether an applicant would suffer irreparable harm in the absence of a stay; and the balance of convenience. The overarching consideration is whether the interests of justice call for a stay.

In this case, a stay is unnecessary, since the parties consent to an expedited appeal and the order under appeal preserves the SADRE databased until December 30, 2020. A stay was therefore unnecessary if the appeal is heard and decided before the end of the year.

The Court expedited the appeal to be heard on time and made orders regarding the filing of materials, exchange of facta and contents of the facta.