2020 QCCA 1806, 2020 QCCA 1806

Fontaine c. Attorney General of Canada 2020 QCCA 1806 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028602-191 (500-06-000293-056) DATE: December 18, 2020 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A. LARRY PHILIP FONTAINE G.S. APPELLANTS – Plaintiffs v.

ATTORNEY GENERAL OF CANADA RESPONDENT – Defendant and ATTORNEY GENERAL OF QUEBEC INTERVENER JUDGMENT [ 1 ] The appellant appeals, with leave from a judge of this Court, [1] the letter decision dated September 9, 2019, from Madam Justice Chantal Corriveau of the Superior Court, District of Montreal, ordering him to have his Request for Direction heard in Vancouver before the British Columbia Supreme Court.

BACKGROUND The Indian Residential Schools litigations and the related IRS Settlement Agreement [ 2 ] From the 1860’s to the 1990’s, more than 150,000 First Nations, Inuit and Métis children were required to attend Indian Residential Schools operated by religious organizations and funded by the Government of Canada. This system was intended to remove and isolate children from the influence of their homes, families, traditions and cultures.

Thousands of these children were also abused either physically, emotionally or sexually while at these residential schools. [2] [ 3 ] Numerous actions were undertaken against Canada and various religious institutions seeking compensation for the damages suffered by the children in these residential schools. The IRS Settlement Agreement was signed in 2006 to settle these actions. Its purpose was to achieve a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools.

That agreement notably provides for an Independent Assessment Process (“IAP”) for claimants who assert they suffered serious physical or sexual abuse, or psychological harm, at a residential school. [ 4 ] This appeal concerns a specific adjudication under the IAP for a claimant residing in Quebec. The rules governing IAP adjudications are set out in

Schedule D to the IRS Settlement Agreement. That

schedule describes which harms are compensable, prescribes what must be established by a claimant, sets out a compensation scale and provides for an adjudication process. It includes both a standard track and a complex track to resolve claims. [ 5 ] The appellant’s claim falls under the standard track. This entitles him to a hearing before an adjudicator acting under an inquisitorial model. The standard track also provides for two types of review.

First, any party may ask the Chief Adjudicator to determine whether an adjudicator’s or reviewing adjudicator’s decision properly applied the IAP Model to the facts as found by the initial adjudicator, and if not, to correct the decision.

Second, a claimant (but not a defendant) may also require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error, and if so found, the reviewing adjudicator may substitute a new decision or order a new hearing. [ 6 ] The IAP is a post-litigation claims assessment process, a contractual component of the IRS Settlement Agreement arising from the parties’ negotiations and a closed adjudicative process operating under the purview of independent adjudicators without any rights of appeal or judicial review. [3] There is therefore no right of appeal to the courts from an AIP claim decision, nor is judicial review available with respect to such a decision.

[ 7 ] However, some court supervision is provided for in the judicial orders approving the IRS Settlement Agreement. In December 2006, courts in nine Canadian jurisdictions, including Quebec, concurrently issued orders to certify or authorize a class action in each of their respective jurisdictions arising out of the residential schools system and to approve the IRS Settlement Agreement as a proposed settlement.

For Quebec, a judgment approving the IRS Settlement Agreement was thus issued in 2006 by Tingley, J. of the Quebec Superior Court (“ Quebec Approval Order ”). [4] [ 8 ] The provincial and territorial superior court judges who certified or authorized the class action for their respective jurisdictions were designated as supervising judges.

The Quebec Approval Order , as all other similar orders in other Canadian jurisdictions, incorporates by reference the terms of the IRS Settlement Agreement and provides that provincial and territorial class proceedings law applies to the supervision, operation and implementation of that agreement. In Quebec, these are the provisions of the Code of Civil Procedure dealing with class actions.

Like all the other orders issued with respect to the IRS Settlement Agreement, the Quebec Approval Order also provides for court supervision and sets out that the Quebec Superior Court will supervise the implementation of the IRS Settlement Agreement and may issue orders as are necessary for that purpose. [ 9 ] Furthermore, in 2007, as was done in all the jurisdictions involved, Tingley, J. of the Quebec Superior Court also issued an implementation order with respect to the IRS Settlement Agreement [5] (“ Quebec Implementation Order ”) setting out various rules as to how that agreement would be implemented, including a streamlined process for judicial supervision in accordance with a Court Administration Protocol. [ 10 ] That Court Administration Protocol provides that each of the courts involved appoints a supervising judge for the IRS Settlement Agreement.

These supervising judges designate two Administrative Judges from among themselves. All matters that require court orders, directions or considerations are to be brought to their attention by the filing of a Request for Direction. Should a hearing be required, the Administrative Judges are entrusted to determine the jurisdiction in which the hearing is to be held, being guided in this matter by certain principles set out in the protocol. The claims process with respect to the appellant The initial decision [ 11 ] The appellant is a member of an aboriginal nation located Quebec.

At all pertinent times, he resided in Quebec. He was placed as a young boy at an Indian Residential School located in Quebec. That school is recognized as an Indian Residential School (or “IRA”) under

Schedule E of the IRS Settlement Agreement. He alleged that he had been the victim of sexual assaults by another student of that school. [ 12 ] He submitted a claim under the IAP invoking the category of compensable claims under

Schedule D of the IRS Settlement Agreement relating to a sexual or physical assault committed by one student against another at an Indian Residential School: [6] I: COMPENSABLE ABUSE The following categories of claims are compensable within this IAP. (…) 2. Sexual or physical assaults, as particularized in the Compensation Rules and Instructions below, committed by one student against another at an IRS where:

a) the Claimant proves that an adult employee of the government or church entity which operated the IRS in question had or should reasonably have had knowledge that abuse of the kind alleged was occurring at the IRS in question during the time period of the alleged abuse, and did not take reasonable steps to prevent such abuse; (…) [ 13 ] A hearing on this claim under the IAP was held within the province of Quebec on July 23, 2015, before adjudicator Roxane Stanners.

Following the hearing, the claim was adjourned at the request of the appellant’s counsel to see if any admissions related to student-on-student sexual abuse for the period identified in the claim could be generated.

After determining that no further admissions for this school would be forthcoming and as adjudicator Stanners was no longer available, the Chief Adjudicator under the IAP designated another adjudicator, Michel Landry (“Initial Adjudicator”), to make the final decision pursuant to a review of the entire file documents, including the hearing transcript and the final submissions of the parties. [ 14 ] Both parties agreed that the appellant’s account of the assaults was both credible and reliable.

As a result, in a written decision dated December 19, 2017 (“Initial Decision”), the Initial Adjudicator found that the appellant had been subject to student-on-student sexual assaults at the school in the early 1970’s.

The main issue of contention between the parties was therefore not whether the assaults had taken place, but rather whether the criteria set out in the IAP for compensating student-on-student assaults had been met, specifically whether an adult employee of the government or church entity which operated the IRS in question had or should reasonably have had knowledge that the abuse was occurring at the IRS in question during the time period it occurred, and did not take reasonable steps to prevent it. [ 15 ] No direct evidence of such knowledge was submitted for the year the assault occurred.

Rather, the appellant relied on the memory of the adult employees of the school as to prior student-on-student abuse resulting from admissions by Canada with respect to prior years. [ 16 ] Canada argued that the IAP Model requires that the knowledge by adult staff members of student-on-student sexual assaults must be established for the relevant period during which the assaults actually took place, without relying on Canada’s admissions of

knowledge for prior years. In Canada’s view, the timeframe of admissions cannot be elongated merely by the presence of the same administrator at the school, both at the time contemplated by the admission and at the time of the incident on which the claim is based occurred.

Canada argued that taking into account admissions of knowledge for prior years would distort both the terms of the IAP Model and the scope of the admissions made by Canada within the IAP. [ 17 ] The Initial Adjudicator dismissed Canada’s objections and ruled, rather, that IAP adjudicators may conclude that knowledge of student-on-student sexual assaults can be carried forward in the mind of a school staff member for the term of employment, depending on the circumstances and the level of administrative responsibility assumed by that staff member. [7] In the specific case of the appellant, the Initial Adjudicator concluded that since two former administrators were still operating within the concerned aboriginal community in the year prior to the assault when a new principal of the school was appointed, the latter “must have been made aware of some of the issues at the school including sexual assaults” and, consequently, he “had knowledge or should have had knowledge that abuses were occurring at the IRS at the relevant period of time.” [8] The Initial Adjudicator concluded on the same basis with respect to the issue of establishing that reasonable steps had not been taken to prevent the abuse. [9] [ 18 ] As a result, the Initial Adjudicator awarded the appellant $42,623.48 under the compensation scheme set out in the IAP Model.

The review decisions [ 19 ] Canada requested a review of the Initial Decision on the ground that the Initial Adjudicator had misapplied the IAP Model to the facts as he found them by wrongly extending the applicability of Canada’s admissions in order to find that the knowledge component of the test had been met in the appellant’s case. Canada’s review request was grounded on the following provision of the IRS Settlement Agreement: [10] l. Review i.

For cases within the standard or complex track, any party may ask the Chief Adjudicator or designate to determine whether an adjudicator’s, or reviewing adjudicator’s, decision properly applied the IAP Model to the facts as found by the adjudicator, and if not, to correct the decision, and the Chief Adjudicator or designate may do so. [ 20 ] It should be noted that in the standard track under the IAP Model, only “Claimants may require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error.” [11] Consequently, as the appellant’s case falls under the standard track, Canada could only seek a review of the Initial Decision if it could establish that the Initial Adjudicator had not properly applied the IAP Model to the facts as he found them to be. [ 21 ] The appellant argued that the issue was not one of the misapplication of the IAP Model, but rather one of simple fact-finding.

Here, the Initial Adjudicator noted that knowledge does not carry forward in every case and the extent it can be relied upon depends on the employee’s role.

The appellant further submitted that based on Canada’s prior admissions as to knowledge of abuse, the Initial Adjudicator reasonably inferred, as a matter of fact, that the senior staff of the school would talk to one another about an issue as important as sexual abuse between students and would therefore be aware of such abuse at the time relevant to the appellant’s claim. [ 22 ] Review adjudicator Kathleen Keating overturned the Initial Decision and dismissed the appellant’s claim on June 4, 2018 (“Review Decision”).

The review adjudicator concluded that the issue was related to the misapplication of the IAP Model to the facts as found by the Initial Adjudicator and that therefore Canada could properly seek a review of the Initial Decision. She was of the view that it was a misapplication of the IAP Model to find that proof of staff knowledge of sexual activities in prior years, together with nothing more than the continued presence in the community of the administrators who were in place in those years, satisfies the requirement to prove staff knowledge that such activities were happening in the year the assault occurred.

She further found that the Initial Adjudicator had misapplied the IAP Model in concluding that the staff failed to take reasonable measures without resorting to any other factual analysis than the implied knowledge of the abuse. [12] [ 23 ] The appellant sought a second review on the ground that the review adjudicator had herself misapplied the IAP Model. In a decision dated November 21, 2018 (“Re-review Decision”), re-reviewing adjudicator Wes Marsden affirmed the reviewing adjudicator’s decision.

He concluded that “corporate memory” was not mentioned in the IAP Model and could therefore not be used to extend Canada’s liability under that model for student-on-student assaults to a period that is outside an admission. [13] The Request for Direction [ 24 ] On December 20, 2018, the appellant filed a Request for Direction asking the Quebec Superior Court supervising judge for Quebec under the Quebec Implementation Order to set aside the Review Decision and the Re-review Decision on the basis that they were rendered contrary to the IRS Settlement Agreement and without jurisdiction.

The appellant submits that the only ground for review which Canada may raise with respect to an Initial Adjudicator’s decision relating to a claim under the standard track is whether the adjudicator properly applied the IAP Model to the facts as he found them to be.

The appellant thus submits that the review adjudicator and the re-review adjudicator acted without jurisdiction since they reassessed the evidence before the Initial Adjudicator in order to substitute their own conclusions as to whether the criteria of the IAP had been met for a claim based on a student-on-student sexual assault. [ 25 ] The appellant argues that since the review and re-review adjudicators reversed the Initial Decision on the basis of an error of fact rather than an error in the application of the IAP Model to the facts, they deprived him of the benefits he is entitled to under the IRS Settlement Agreement.

He further submits that the Superior Court has the power and duty under the Quebec Code of Civil Procedure [14] and the IRS Settlement Agreement itself to ensure that all claimants receive the benefits they are entitled under that agreement. He

consequently asks the Superior Court to quash the Review Decision and the Re-review Decision on jurisdictional grounds and to restore the Initial Decision. [ 26 ] This Request for Direction was brought to the attention of the two Administrative Judges under the Court Administration Protocol: Justice Brown of the British Columbia Supreme Court and Justice Perell of the Ontario Superior Court of Justice. On February 11, 2019, an attorney acting for the Administrative Judges informed the appellant’s counsel over the telephone that the Request for Direction would be decided in Vancouver.

The appellant’s counsel objected on the basis that the Superior Court had exclusive jurisdiction over the matter. [ 27 ] On March 20, 2019, the attorney representing the Administrative Judges reiterated in writing to the appellant’s counsel that the Request for Direction would be heard by Justice Brown of the British Columbia Supreme Court, one of the two Administrative Judges and the supervising judge for British Columbia. [ 28 ] On March 22, 2019, the appellant’s counsel objected to having the matter referred to Justice Brown and specified that the appellant would not appear in Vancouver without an order being issued by the Quebec Superior Court.

On August 7, 2019, the attorney representing the Administrative Judges reiterated again the prior direction that the matter would be heard in Vancouver before Justice Brown. [ 29 ] On September 9, 2019, the Quebec Superior Court supervising judge wrote to the appellant’s counsel instructing him to follow the direction of the Administrative Judges.

THE ISSUE IN APPEAL [ 30 ] In the IRS Settlement Agreement, the parties decided that, with some rare exceptions, all existing class action statements of claim and representative actions filed against Canada in relation to Indian Residential Schools in any court in any Canadian jurisdiction (except the Federal Court of Canada) would be merged into a uniform statement of claim to be filed and approved as a uniform class action in each jurisdiction.

That uniform statement of claim would assert common causes of action in order to form the uniform class actions which would be subject to the terms of the IRS Settlement Agreement. [15] [ 31 ] These new uniform class actions would subsume all classes contained in the original claims with the modifications required to limit the scope of the classes certified or authorized by each court to the provincial or territorial boundaries of that court. [16] Class membership in each of these class actions would be determined by reference to the province or territory of each class member, except for residents of Newfoundland and Labrador, Nova Scotia, New Brunswick and Prince Edward Island and international residents, who would be deemed members of the Ontario class. [17] Similar approval orders were to be adopted by each court of each pertinent jurisdiction in order to ensure the application of the settlement throughout Canada. [ 32 ] The IRS Settlement Agreement did not directly provide for a mechanism of court supervision, save in very broad terms set out in its

section 18.04: 18.04 Dispute Resolution The parties agree that they will fully exhaust the dispute resolution mechanisms contemplated in this Agreement before making any application to the Courts for directions in respect of the implementation, administration or amendment of this Agreement or the implementation of the Approval Orders.

Application to the Courts will be made with leave of the Courts, on notice to all affected parties, or otherwise in conformity with the Agreement. [ 33 ] In rendering the first order to approve the IRS Settlement Agreement, Justice Winkler of the Ontario Supreme Court of Justice emphasized the need for court supervision so as to ensure that the court would “be in a position to effectively evaluate the administration and the performance of the administrator and, further, be empowered to effect any changes that it finds necessary to ensure that the benefits promised under the settlement are being delivered”. [18] Based on this reasoning, the approval orders from each court provided a specific requirement for court supervision. [ 34 ] The Supreme Court of Canada has held that the broad powers of supervising judges under the approval and implementation orders respecting the IRS Settlement Agreement are both administrative and supervisory in nature and are supported by class action legislation, which provides the courts with generous discretion to make orders and impose terms as necessary to ensure a fair and expeditious resolution of class actions. [19] [ 35 ] However, this is not a form of judicial review, since the powers of IAP adjudicators are not conferred by the state but rather derive from a contract. [20] The authority for recourse to the supervising courts is to be found in the IRS Settlement Agreement itself, the approval and implementation orders and provincial class proceedings legislation. [21] [ 36 ] The Quebec Implementation Order of 2007, like the similar orders in other Canadian jurisdictions, thus provides for a streamlined process for court supervision of the IRS Settlement Agreement.

This streamlined process is set out under the Court Administration Protocol. That protocol provides that each jurisdiction appoints supervising judges who, in turn, appoint two Administrative Judges to manage all Requests for Direction made to the supervising courts. If a hearing is required to dispose of a Request for Direction, the Administrative Judges are called upon to determine the jurisdiction in which the hearing will be held based on principles set out in the Court Administration Protocol.

In particular, where the issue raised in the Request for Direction involves relief for a particular class member or particular class, the hearing is to be directed to the supervising court with jurisdiction over the class member or class pursuant to the terms of the IRS Settlement Agreement and the approval orders. [ 37 ] It is appropriate to reproduce

section 5 of the Court Administration Protocol:

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 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) will affect all jurisdictions, the hearing may be directed to any court supervising the Agreement. (

d) If the issue(

s) raised are such that the relief requested may result in an order that would constitute an amendment of the Agreement or the Approval Orders, the Administrative Judges will direct that a full record be delivered to each of the supervising courts and direct that the matter be heard by at least one of the supervising courts. Upon communication with all the supervising courts, the Administrative Judges will advise the parties further how many additional hearings will be held, if any.

A supervising court that has received a copy of the full record may choose to adopt the reasons of any other supervising court hearing the matter without holding a formal hearing of its own, but no order amending the Agreement or the Approval Orders shall be effective unless it is approved by all 9 (nine) supervising courts. (

e) On purely procedural matters, the Administrative Judges may direct that any hearing shall be in writing only. On substantive matters, the court to which the hearing is directed, shall in its discretion, determine the manner in which the matter will be heard, whether in writing or by appearance, or both. (

f) In applying these principles, the Administrative Judges may also be guided by any other considerations that he or she deems to be appropriate in the circumstances. [ 38 ] This protocol is not part of the IRS Settlement Agreement. It is therefore not a contractual undertaking of the parties and cannot be construed as a forum selection clause adopted by the parties to the settlement agreement.

It is, rather, a court-approved process to facilitate both judicial comity between the involved jurisdictions and the application of the rules of private international law as between them. [ 39 ] The basic and primary submission made by the appellant and the AGQ is that the Court Administration Protocol itself clearly sets out in s. 5(

a) that if the relief required under a Request for Direction is 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 IRS Settlement Agreement and approval orders. [ 40 ] The appellant and the AGQ thus submit that the Court Administration Protocol itself requires the matter to be dealt with by the Quebec Superior Court. The AGQ adds that s. 5(

a) seeks to confirm the constitutional and inherent jurisdiction of the Quebec Superior Court to supervise the class proceedings authorized for Quebec claimants under the IRS Settlement Agreement and the Quebec Approval Order . [ 41 ] This is indeed the purpose of s. 5(

a) and that purpose is entirely consistent with applicable private international law principles. It is, moreover, undisputed that the appellant’s Request for Direction involves relief for a particular class member. Consequently, s. 5(

a) of the Court Administration Protocol applies. As a result, under the terms of the Court Administration Protocol, it “will be directed to the supervising court with jurisdiction over the class member”, which, in this case, is the Quebec Superior Court. [ 42 ] That being said, the Court Administration Protocol also provides for exceptions to this general rule, notably in ss. 5(

b) through (f). The issue in appeal is therefore whether any of these exceptions apply in this case. THE ACQUIESCENCE TO THE APPEAL [ 43 ] A few days before the appeal was to be heard, the respondent acquiesced to the conclusions sought by the appellant. [ 44 ] Questioned by the parties as to whether the Court could accept an acquiescence on an issue of the jurisdiction of the Superior Court, all attorneys representing the parties submitted that the issue in appeal was not truly the jurisdiction of the Superior Court, which all parties acknowledge and recognize, but rather the

interpretation and application of s. 5 of the Court Administration Protocol, a matter which would not strictly be one of jurisdiction but rather of

interpretation. [ 45 ] An acquiescence to the conclusions sought in appeal may perhaps be possible in the circumstances of this case. On the other hand, the

interpretation and application of s. 5 of the Court Administration Protocol can reasonably be assimilated to a jurisdictional issue. [ 46 ] The Court need not however decide whether the respondent can acquiescence to a judgment respecting the jurisdiction of the Superior Court since it agrees with the conclusions sought by the appellant. Since the respondent is no longer challenging the appeal, the Court will issue an order consistent with both the acquiescence to judgment and the relief sought by the appellant.

PROVISION FOR COSTS [ 47 ] The appellant has also made an application for provisional costs to cover the expenses of this appeal. [ 48 ] In light of the nature of the appeal and the acquiescence thereto by the respondent a few days before the hearing was held, the Court is of the view that the parties should first be given an opportunity to discuss between themselves the issue of provisional costs in

addition to the legal costs set out in the Code of Civil Procedure , to which the appellant is entitled in any event. It may well be appropriate for the parties to resolve this matter without recourse to the Court. [ 49 ] Should the parties not reach a settlement within 60 days of this judgment, the appellant may then seize the Court anew of his application for a provision for costs by means of an appropriate notice of hearing.

FOR THESE REASONS, THE COURT: [ 50 ] TAKES NOTE of the Attorney General of Canada’s acquiescence to the appeal; [ 51 ] ALLOWS the appeal; [ 52 ] QUASHES the letter decision dated September 9, 2019 of the Superior Court; [ 53 ] RETURNS the appellant’s Request for Direction to the Superior Court to be dealt with and decided upon by the appropriate judge of that Court. [ 54 ] TAKES NOTE of the appellant’s application for a provision for costs and RESERVES the Court’s jurisdiction with respect to that application; [ 55 ] DIRECTS the appellant and the respondent to carry out discussions regarding the provision of costs to the appellant with respect to this appeal; [ 56 ] ALLOWS the appellant to file a notice of hearing with respect to his application for a provision for costs should the appellant and the respondent fail to reach an agreement on the matter within 60 days of this judgment, such hearing to be held before the panel of this Court sitting in the Mignault Courtroom on March 22, 2021; [ 57 ] THE WHOLE , with legal costs to the appellant.

GENEVIÈVE MARCOTTE, J.A. ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A. Mtre David Schulze Mtre Katica Geneviève Spillane DIONNE SCHULZE For Appellant Mtre Mireille-Anne Rainville Mtre Jessica Pizzoli MINISTÈRE DE LA JUSTICE CANADA For Respondent Mtre Jean-Yves Bernard BERNARD, ROY (JUSTICE-QUÉBEC) For Intervener Date of hearing: December 15, 2020