2012 QCCA 366, 2012 QCCA 366

J.C. c. Canada (Procureur général) 2012 QCCA 366 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No. : 200-09-007054-106 (200-17-011688-090) DATE : February 27, 2012 CORAM : THE HONOURABLE FRANCE THIBAULT J.A. ALLAN R. HILTON J.A. JACQUES A. LÉGER J.A. J.C. APPELLANT – Plaintiff v. ATTORNEY GENERAL OF CANADA RESPONDENT – Impleaded party and ANDRÉ BACHAND , ex officio IMPLEADED PARTY– Defendant and R.J. AND ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Quebec (the Honourable Mr.

Justice Gratien Duchesne), rendered on April 27, 2010, that granted, with costs to follow, an application for execution of a precedent obligation filed by the Attorney General of Canada pursuant to article 168(3) of the Code of Civil Procedure; [ 2 ] For the reasons of Hilton J.A., with which Thibault and Léger JJ.A. agree; THE COURT: [ 3 ] DISMISSES the appeal with costs; [ 4 ] RENEWS the six-month time period provided in paragraph [54] of the judgment under appeal for the purpose mentioned therein. FRANCE THIBAULT, J.A. ALLAN R. HILTON, J.A. JACQUES A. LÉGER, J.A.

Mtre Benoît Mailloux Mtre Mathieu Leblanc-Gagnon Mtre Christian Trépanier Mtre Maxime-Arnaud Keable FASKEN, MARTINEAU For the appellant Mtre Nancy Bonsaint Mtre Louis-Alexandre Guay JOYAL, LEBLANC For the respondent Mtre David Drouin-Lê Mtre Tina Hobday LANGLOIS, KRONSTRÖM For the impleaded party André Bachand, ex officio Date of hearing: November 17, 2011 REASONS OF HILTON J.A. [ 5 ] The appellant appeals from a judgment of the Superior Court that granted an application for execution of a precedent obligation filed by the Attorney General of Canada.

The judgment declared that the action in nullity brought by the appellant against a decision rendered by the impleaded party, André Bachand, within the framework of the compensation scheme for victims of residential schools, is subject to the precedent obligation that the leave of Tingley J. or another judge of the Superior Court designated for that purpose be obtained. I THE FACTS AND PROCEEDINGS

[ 6 ] The appellant, J.C., has been a member of the Missionary Oblates of Mary Immaculate (the “Oblates”) since 1963. On October 17, 2007, he received a letter from Indian Residential Schools Resolution Canada (IRSRC) informing him that [ translation ] “allegations of abuse had been made against him by former students” through a confidential administrative mechanism known as the Alternative Dispute Resolution (ADR) Model.

The letter informed him that the ADR process offered him the possibility of being heard, but urged him, [ translation ] “[g]iven the potential personal or professional repercussions of the allegations”, to consult an attorney.

In the circumstances, the appellant decided to testify before André Bachand (the adjudicator), the defendant at trial and the impleaded party in appeal, who had to adjudicate, in the context of the ADR process, the claim of a claimant, R.J., who is also an impleaded party. [ 7 ] In his decision of May 15, 2009, the adjudicator summarized R.J.’s testimony in which he described an incident of a sexual nature.

Subsequently, he summarized the appellant’s testimony as follows: [Editor’s note: Certain passages of this judgment have been redacted in compliance with the publication ban.] [ 8 ] On June 30, 2009, the appellant received a version of the decision, three-quarters of which were redacted. It indicated that R.J.’s allegations of abuse did not concern solely the appellant, but also another brother.

The adjudicator reached the following conclusion: [ translation ] After carefully considering the testimony of both the claimant and the impleaded party, I must admit that I have no reason to set aside the claimant’s testimony, in whole or in part. He answered all my questions and his testimony matched what he stated on his application. He did not contradict himself. He related the events in logical sequence and designated the abusers by their names. He located precisely the places where the events took place.

Moreover, he was at the said residential school at the same time as the impleaded party, i.e. from September 1964 to March 1972, according to the Government reports. I therefore conclude that, on a balance of probabilities, Brother J.C. [and] Brother xxxxxxxxx [1] subjected the claimant to incidents [of a sexual nature]. [Transcribed as is.] [ 9 ] That decision was accompanied by a letter informing the appellant that, as a witness, he [ translation ] “cannot appeal from the adjudicator’s decision”. Accordingly, the appellant filed motion to institute an action in nullity of that decision.

In it, he claimed, inter alia , that the procedure that the adjudicator followed impaired his right to make full answer and defence, in particular by preventing him from becoming familiar with R.J.’s complete statement, from being present for R.J.’s testimony, from cross-examining him, and from making submissions before the adjudicator. He also contended that a substantial portion of the impugned decision was not disclosed to him. [2] [ 10 ] Subsequently, the Attorney General of Canada filed an application by the impleaded party for execution of a precedent obligation, based on article 168(3) C.C.P .

In it, he claimed that the ADR process was part of the implementation of the Indian Residential Schools Settlement Agreement (IRSSA), which was approved by nine Canadian superior courts as a settlement of a pan- Canadian class action concerning the Indian residential schools. Thus, he argued that the appellant’s proceeding was subject to prior leave as required by one of the conclusions of the judgment rendered in Quebec by Tingley J., [3] which dealt with the authorization of the class action and the approval of the IRSSA. That conclusion states the following: 30.

THIS COURT ORDERS AND DECLARES that no person may bring any action or take any proceedings against the Trustee, the Chief Adjudicator, the IAP Oversight Committee, the National Certification Committee, the National Administration Committee, the Chief Adjudicator’s Reference Group, the Regional Administration Committees, as defined in the Agreement, or the members of such bodies, the adjudicators , or any employees, agents, partners, associates, representatives, successors or assigns, of any of the aforementioned, for any matter in any way relating to the Agreement, the administration of the Agreement or the implementation of this order, except with leave of the Court on notice to all affected parties . [Emphasis added.] [ 11 ] For a clearer understanding of the context of the appellant’s recourse and the judgment granting the respondent’s application, it is important to describe the circumstances that led to the creation of the ADR process and the approval of the IRSSA.

Il THE ADR PROCESS AND THE IRSSA [ 12 ] The ADR process was set up in 2002 by the federal minister responsible for the IRSRC to manage the many civil actions brought against the federal government and various religious entities by former residents of Indian residential schools. At the time, it was an optional scheme that offered [ translation ] “the former students an alternative to pursuing their claims before the courts”. [ 13 ] Despite these efforts, actions instituted against the government continued to multiply across the country, primarily in the form of class actions.

To correct the situation, the government decided to open negotiations with all of the parties concerned with the aim of arriving at a final settlement of all the claims relating to the Indian residential schools.

In May 2006, the negotiations culminated in the ratification of the IRSSA by the federal government’s representative, Mtre Frank lacobucci, a retired judge of the Supreme Court, and by the representatives of the plaintiffs in the various class actions concerned, the several religious entities involved, the Assembly of First Nations, and the Inuit communities. [ 14 ] With respect to the negotiations, it is useful at this stage to cite a few excerpts from the affidavits of Father Jacques L’Heureux on behalf of the Oblates and that of Mtre Iacobucci.

The excerpts provide perspectives that explain the objectives of the settlement and the steps taken to reach it. Father Jacques L’Heureux 7.

Without admitting liability for any alleged wrongdoing by the Corporation or by those for whom the Corporation may be responsible, the Corporation desires to achieve a fair and reasonable settlement of the Residential School Litigation so that resources and funds of the Corporation that are currently being spent in defence of such litigation can be redirected towards promoting healing and reconciliation in regards to former students of residential schools, their families and their communities. . . . Mtre Frank lacobucci 16.

At every meeting, all counsel and stakeholders took the opportunity to make their positions known on a broad range of issues, either orally or in writing. A number of working groups consisting of counsel or representatives from Canada, the church organizations, plaintiffs and other stakeholders were struck to consider various issues. For example, a working group was formed to consider and make recommendations to me on a revised and improved Alternative Dispute Resolution process. That working group continues to meet and make recommendations to me on an ongoing basis.

We also created a working group that retained Siggner & Associates Inc., experts in statistics respecting Aboriginal peoples, to provide an estimate of the living former students of Indian Residential Schools. A copy of the Siggner report is attached to the affidavit of Richard Courtis filed in this motion. . . . 39. I believe that the negotiation process that led to the execution of the Settlement Agreement was fair, comprehensive and inclusive. As described at paragraphs 8 to 18 above, all parties were provided every opportunity to be heard and make submissions as to the terms of the Settlement Agreement. 40.

I also believe that the Settlement Agreement provides a fair and reasonable resolution of the residential schools issue. My primary focus was to achieve a final and comprehensive resolution package which would extend beyond monetary compensation and properly address the legacy of Indian Residential Schools for both former students and their families. . . . 45. The Settlement Agreement is a just, honourable and lasting resolution of historic significance. It deals fairly and comprehensively with issues that have remained unresolved for generations.

If reflects a shared vision among all the parties involved in these negotiations as to how the Indian residential schools legacy should be resolved. [ 15 ] In addition to the introduction of certain measures producing indirect benefits for former residential school students, their

families and their communities, the agreement provides for compensation by the federal government of the former students of Indian residential schools through the Common Experience Payment (CEP) and the Independent Assessment Process (IAP). The CEP is offered to all former students of the Indian residential schools, whether or not they were the victims of specific abuse, while the IAP specifically concerns claims for cases of physical and sexual abuse.

Thus, the IAP is [ translation ] “the improved successor to the ADR process”; the IRSSA, however, provides for an overlapping period during which the former students of the Indian residential schools could opt for one of the administrative mechanisms. In all cases, compensation is assured by the federal government. Liability is not incurred by either the alleged perpetrators of the abuse or their religious congregations. [ 16 ] With the IRSSA, the parties “desire[d] a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools”.

So that the IRSSA could be set up against all the former students, their representatives agreed “to amend and merge all of the existing proposed class action statements of claim to assert a common series of Class actions for the purposes of settlement”. Applications for authorization of a pan-Canadian class action were therefore filed before nine different superior courts across Canada.

At the same time, the parties sought approval of the IRSSA as a settlement of the proceeding. [ 17 ] On December 15, 2006, Tingley J. rendered his judgment authorizing the institution of the class action in Quebec and approving the IRSSA as a settlement thereof. [4] He indicated in a separate judgment, [5] however, that his approval was conditional on the correction of the weaknesses indicated in his judgment and in another similar judgment rendered the same day in Ontario by Winkler J., now Chief Justice of the Court of Appeal of that province. [6] In particular, Tingley J. raised certain doubts about the necessity expressed in the IRSSA that any amendment essential to the agreement be approved unanimously by all the Canadian courts hearing the proceeding.

Winkler J. also expressed his opinion on that issue and suggested to the parties that the issue be resolved by adopting a specific protocol to that effect. [ 18 ] Accordingly, on March 8, 2007, Tingley J. ratified for Quebec a document entitled “Court Administration Protocol” to define the procedure to follow to obtain any order by the Court in the context of the pan-Canadian class action. [7] Under the protocol, the nine courts responsible for overseeing the class action undertook to designate two judge administrators to whom any request requiring judicial leave was to be submitted first, so that they could determine the feasibility of organizing a management conference and the jurisdiction in which the hearing was to be held.

Winkler J. was appointed judge administrator for Eastern Canada, i.e., Ontario, Quebec and the Maritimes. [ 19 ] That is why the respondent, in his application for execution of a precedent obligation, asks that the appellant’s action in nullity be transferred to the judge administrator for Eastern Canada and, [ translation ] “in the alternative”, to Tingley J., the judge overseeing the class action for Quebec.

III THE JUDGMENT UNDER APPEAL [ 20 ] At the outset, the judge noted that [ translation ] “[t]he best use of judicial resources requires that Tingley J., who is very familiar with this dispute, hear the application for leave to bring an action”. He based this on the second paragraph of

article 4.1 and

article 4.2 C.C.P ., which deal with case management and the principle of proportionality, as well as on

article 1001 C .C.P ., which provides that the same judge hear the entire proceedings relating to the same class action. [ 21 ] He then considered the conclusion in paragraph 30 of Tingley J.’s judgment and found that it could, in fact, [ translation ] “be considered a precedent obligation since it obliges any person who wants to bring an action against an adjudicator to obtain prior leave of the judge before whom the proceeding is brought”. [ 22 ] The appellant contended, however, that the obligation does not apply in the framework of the ADR process or to proceedings instituted to challenge a decision rather than to bring an action against an adjudicator.

The judge rejected those two arguments. [ 23 ] Indeed, although the ADR process existed before the IRSSA came into effect, it was deliberately [ translation ] “included in the IRSSA approved by the judgments in the class actions”. For example, [ translation ] “the agreement provides that a claimant in the ADR process can receive the benefits provided under the IAP”. Furthermore, although the action impugned the adjudicator’s decision, the adjudicator was in fact designated as the defendant in the proceeding.

Thus, the judge concluded that [ translation ] “the Honourable Tingley J. … expanded the scope of the precedent obligation to all proceedings that could have an impact on the IRSSA”. [ 24 ] Finally, in response to the appellant, who claimed that he was not personally a party to the IRSSA, the judge merely cited the definition of defendant in subparagraph 1(

k) of the judgment of Tingley J.: k) “Defendants” mean Canada and each of the other party Defendants, including each of their respective past and present parents, subsidiaries and related or affiliated entities and their respective employees, agents, officers, directors, shareholders, principals, members, attorneys, insurers, subrogees, representatives, executors, administrators, predecessors, successors, heirs, transferees and assigns and also the entities listed in Schedules “B”, “C”, “G” and “H” of the Agreement; [ 25 ] The judge concluded that, as a party to the settlement, the appellant [ translation ] “must abide by the proceedings it provides” and obtain leave from Tingley J., who [ translation ] “has remained seized of the class action”, or from [ translation ] “another judge designated for that purpose”.

He also granted the appellant six months in which to do so.

IV ANALYSIS [ 26 ] Although the appellant raises a number of issues in support of his appeal, in reality, there is only one. Stated most simply, the real issue is whether the judgment of Tingley J. can be set up against the appellant, even though his name does not appear in the designation of the parties to the dispute that gave rise to the judgment. [ 27 ] Subparagraph (3) of the first paragraph of

article 168 C.C.P . allows a defendant to ask that a suit be stayed “when he has the right to demand the execution by the plaintiff of some precedent obligation”. The expression “precedent obligation” (“obligation préjudicielle” in French) designates a procedural obligation [ translation ] “that must be fulfilled prior to any legal proceedings”. [8] [ 28 ] The judge seems to have identified two sources for such an obligation: (1) the general principles of proportionality and of case management, and (2) paragraph 30 of the judgment of Tingley J.

It is appropriate to deal solely with the second source, since the first is not an independent source that the judge could properly use as a foundation. [ 29 ] It is clear that paragraph 30 of the judgment of Tingley J. is aimed at creating a precedent obligation by subjecting certain judicial proceedings to the obligation to obtain prior leave of the Superior Court: [9] 30.

THIS COURT ORDERS AND DECLARES that no person may bring any action or take any proceedings against the Trustee, the Chief Adjudicator, the IAP Oversight Committee, the National Certification Committee, the National Administration Committee, the Chief Adjudicator’s Reference Group, the Regional Administration Committees, as defined in the Agreement, or the members of such bodies, the adjudicators , or any employees, agents, partners, associates, representatives, successors or assigns, of any of the aforementioned, for any matter in any way relating to the Agreement, the administration of the Agreement or the implementation of this order, except with leave of the Court on notice to all affected parties . [Emphasis added.] [ 30 ] But is the appellant’s proceeding contemplated by this order, and can the order be set up against him? [ 31 ] The appellant contends that, given the “constitutional” nature of his action in nullity, paragraph 30 of the judgment of Tingley J. [ translation ] “cannot be interpreted as subjecting [him] to prior leave”.

Next, he reiterates his contention, which was rejected by the judge, that his proceeding is not really instituted [ translation ] “against” the adjudicator, but against his decision. According to the appellant, actions in nullity are not contemplated by paragraph 30 of the judgment of Tingley J., the sole purpose of which is to grant the [ translation ] “various intervening parties who play an administrative or decision-making role in the IRSSA … relative immunity similar to that in the legislation that creates and empowers certain public bodies”.

Finally, he also reiterates his argument that the order in paragraph 30 of the judgment of Tingley J. concerns only the IAP adjudicators, not those of the ADR process. [ 32 ] First, the judge did not err in concluding that the ADR process was included in the IRSSA. The purpose of the agreement was to constitute a comprehensive settlement of all the disputes bearing on Indian residential schools. It is true that it did not create the ADR process, which had already existed for a number of years and allowed former students at Indian residential schools to obtain a proposed settlement from the federal government.

The IRSSA does not eliminate that mechanism and even offers claimants who want to submit a claim for abuse the possibility of opting for the mechanism rather than being subject to the IAP, without having to withdraw from the class action. Thus, the IRSSA clearly incorporates the ADR process and changes its nature.

From an alternative mechanism to judicial proceedings, it becomes another administrative mechanism for compensation, the IAP. [ 33 ] Furthermore, there is no indication in the text of Tingley J.’s order that it should not apply when a constitutional right is involved or when it is the decision of an adjudicator, not the adjudicator himself, that is impugned.

Paragraph 30 of the judgment of Tingley J. refers, without restriction, to “any action or…any proceedings against …the adjudicator”. [ 34 ] What is more, the fact that the appellant’s proceeding is constitutional in nature is not, in and of itself, a reason not to subject it to the application of paragraph 30 of the judgment of Tingley J., which requires prior leave. The appellant explains that his action in nullity [ translation ] “calls on the inherent superintending and reforming power of the Superior Court regarding excess of jurisdiction, as well as its inherent constitutional remedial power, granted by

section 24 of the Constitution Act , 1982 ”, and that [ translation ] “[t]he source of these powers is supra-legislative and, under the constitution, cannot be limited, or their exercise delayed”. He contends that the mere possibility that he could be refused the leave referred to in paragraph 30 of the judgment of Tingley J. [ translation ] “interferes with [his] constitutional rights”. [ 35 ] The appellant invokes Crevier , [10] in which the Supreme Court concluded that

section 96 of the Constitution Act, 1867 prevents the Quebec legislator from enacting a legislative provision, namely, a privative clause allowing the Professions Tribunal to be completely exempt from the superintending authority of the Superior Court. Paragraph 30 of the judgment of Tingley J., however, is not a legislative provision, but an order issued by the Superior Court itself. Hence, the constitutional principles of the rule of law and of the division of powers invoked by the Supreme Court in Crevier are not applicable in the appellant’s case. [ 36 ] As for the application of section 24(1) of the Canadian Charter , Professor Hogg explains that a superior court is always a court

of competent jurisdiction under that provision. He adds, however, that, given the discretionary nature of the power in question, superiorcourt judges generally refuse to hear applications under that provision if another court is in a better position to hear it: A superior court, which is a court of general jurisdiction, is always a court of competent jurisdiction.

Moreover, the power of a superiorcourt to grant a remedy under s. 24(1) cannot be limited by statute. (As will be explained, inferior courts and administrative tribunalshave been held to be bound by statutory restrictions on their remedial powers.) Therefore, an application for a remedy under s. 24(1) canalways be made to a superior court. This does not mean that the application will always be successful if a Charter violation isestablished, because the award of a remedy under s. 24(1) is discretionary.

If, for example, the applicant interrupted a trial in an inferiorcourt in order to bring a s. 24(1) application before a superior court, the superior court should normally refuse the application on theground that the trial court is the most convenient forum to hear the s. 24(1) application.[11] [Emphasis added.] [Citations omitted.] [37] Along the same lines, professors Brun, Tremblay and Brouillet[12] write that, in reality, this provision gives rise to a proceedingindependent of the normally applicable rules and procedures only [translation] “when the rules of ordinary law suppress the right to aremedy granted by section 24(1)”: [translation] Although it is an independent right, which the Charter does not attach to any other rule of law, it is generally exercised, according to thecase law, in keeping with the principles that ordinary law attaches to the type of conclusion sought.

If, for example, an appeal lies, this isthe manner in which one must proceed; to obtain damages, one must proceed by action, not by motion; the notices required by generalprocedural law must be given. This is explained by the fact that the Charter gives no indication whatsoever about the way to institute a24(1) proceeding. The courts, however, are quite used to turning to the existing and relevant law before undertaking to create anappropriate framework out of whole cloth.

That is probably what the Supreme Court wanted to say when it implied that the means ofordinary law must be exhausted before turning to 24(1) to obtain a remedy: Dagenais v. Canadian Broadcasting Corporation, (SCC), [1994] 3 S.C.R. 835. When the desired and adequate remedy is attainable through ordinary law, there is no reason toinvent a new procedure under 24(1). See in this regard Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929. In reality,the question is not whether 24(1) is available. It is, when there is a violation of a right: the victim has a constitutional right to a remedy:B.C.G.E.U. v.

British Columbia (Attorney General), (SCC), [1988] 2 S.C.R. 214.

The only question is how (and where)the 24(1) right should be exercised to obtain full sanction, in the greatest compliance possible with the principles of ordinary lawgoverning the administration of justice. [Emphasis added.] [38] In the present case, there is no reason to believe that requiring the appellant’s proceeding to have the prior leave of Tingley J.would [translation] “remove [his] right to a remedy under section 24(1)”, to use the expression of authors Brun, Tremblay and Brouillet.In actual fact, that stage would make it possible to assess whether the applicant is able to make out a prima facie case that he is someone“whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied”, as required by section 24(1) of the CanadianCharter.

Indeed, this is not self-evident, since the ADR process is a confidential mechanism aimed solely at determining thecompensation to be paid to the victims by the federal government. Neither the appellant’s personal liability nor that of his religiouscongregation was likely to be incurred by the adjudicator’s decision. [39] Finally, the appellant relies on two judgments of the Supreme Court to argue that paragraph 30 of the judgment of Tingley J.cannot limit or even delay a proceeding concerning the constitutional remedial power conferred by section 24(1).

These judgments,however, are of no help to him. [40] In R. v. 974649 Ontario Inc.,[13] the Supreme Court had to decide whether a justice of the peace presiding a trial under anOntario statute is a “court of competent jurisdiction” empowered to order the Crown, under section 24(1), to pay the costs of a motionfor disclosure submitted by the other party. McLachlin C.J. considered the statute at issue and concluded that the legislature did notintend to deny justices of the peace sitting pursuant to that statute the power to award costs under section 24(1) of the Charter.

She basedher analysis on, among other things, considerations of effectiveness and accessibility of Charter remedies, and she cited the dissentingcomments of Lamer J. in Mills v. The Queen whereby “[a] remedy must be easily available and constitutional rights should not be‘smothered in procedural delays and difficulties’”.[14] [41] The appellant, however, cannot seriously claim that the obligation set out in paragraph 30 of the judgment of Tingley J. would“smother” his constitutional rights “in procedural delays and difficulties”. [42] As for Doucet-Boudreau v.

Nova Scotia (Department of Education),[15] that judgment does not even concern access to a court ofcompetent jurisdiction for a remedial order under section 24(1) of the Charter. The majority reasons of lacobucci and Arbour JJ. framethe issue as follows:

1 This appeal involves the nature of remedies available under s. 24(1) of the Canadian Charter of Rights and Freedoms for the realization of the minority language education rights protected by s. 23 of the Charter .

The specific issue is whether a trial judge may, after ordering that a provincial government use its best efforts to build French-language school facilities by given dates, retain jurisdiction to hear reports on the progress of those efforts …. [Emphasis added.] [ 43 ] The appellants failed to convince the majority of the Court that the fact that the judge of the Supreme Court of Nova Scotia retained jurisdiction to hear the reports infringed the common law doctrine of functus officio and the principle of the separation of powers between the executive and judiciary.

It is in this context that the majority judgment explained that “[t]he power of the superior courts under s. 24(1) to make appropriate and just orders to remedy infringements or denials of Charter rights … cannot be strictly limited by statutes or rules of the common law”. [16] [ 44 ] It cannot be deduced from that judgment that any requirement for prior leave to institute a section 24(1) proceeding is necessarily unconstitutional.

The appellant’s obligation to comply with the requirement of paragraph 30 of the judgment of Tingley J. and obtain leave before continuing his action in nullity in no way infringes his constitutional rights. What is more, the need for such leave is in perfect harmony with the letter and the spirit of the IRSSA and the judgments of the nine Canadian superior courts confirming it. [ 45 ] The appellant’s action in nullity is among the many proceedings that Tingley J. intended to subject to the precedent obligation set out in paragraph 30 of his judgment.

But the judgment must also be able to be set up against the appellant. [ 46 ] The appellant contends that the judgment of Tingley J. cannot be set up against him because [ translation ] “he was not a party to the class actions in the context of which the judgment was rendered”.

He adds that he was a [ translation ] “member of one of the many religious communities that were sued in the class actions and that signed the IRSSA”, but in his opinion, [ translation ] “it is nevertheless true that these corporations have a legal personality separate from that of their members” and, consequently, the judgment of Tingley J. cannot affect his personal rights. [ 47 ] That said, it appears that paragraph 30 of the judgment of Tingley J. is not limited to the parties; it provides that “no person” may bring any action or take any proceeding without leave of the Court. [ 48 ] Thus, it is important, first of all, to determine whether the trial judge was correct in concluding that the appellant was a party to the IRSSA and, if he was not, whether, despite everything, paragraph 30 of the judgment of Tingley J. can be set up against him. [ 49 ] The text of the IRSSA makes a very clear distinction between the religious communities that are its signatories and the individuals who are their members.

Thus, within the meaning of the IRSSA, the appellant, who is not a signatory, is not considered a “party”, but a “releasee”: 1.01

Definitions In this Agreement, the following terms will have the following meanings: … “Parties” means collectively and individually the signatories to this Agreement ; “Releasees” means , jointly and severally, individually and collectively, the defendants in the Class Actions and the defendants in the Cloud Class Action [17] and each of their respective past and present parents, subsidiaries and related or affiliated entities and their respective employees, agents, officers, directors, shareholders, partners, principals, members , attorneys, insurers, subrogees, representatives, executors, administrators, predecessors, successors, heirs, transferees and assigns the definition and also the entities listed in Schedules “B”, “C”, “G” and “H” of this Agreement. [Emphasis added.] [Bold and italics in original.] [ 50 ] Under the IRSSA, “releasees” are “fully, finally and forever” released from any action relating to an Indian residential school.

This designation and this benefit do not make them “parties” to the IRSSA, which, moreover, imposes no obligation on them. The process offers them the possibility of testifying before an adjudicator, but with no obligation or requirement to do so.

[ 51 ] In that regard, Winkler J. clearly described the process before an adjudicator in a recent judgment in which he adjudicated a request for directions relating to the submission that an adjudicator should have been recused: [10] The IAP [18] is a primary component of the settlement approved by the courts. The purpose of the IAP is to provide a mechanism through which eligible claimants may obtain compensation for proven claims of physical and sexual abuse suffered while a student at a residential school. While there are references to the IAP in the body of the Settlement Agreement, its full terms, including the procedure for advancing the claims, are contained in

Schedule D to the agreement. [11] The IAP is an inquisitorial process in which the adjudicator questions the witnesses and renders a decision. The claimant and the alleged perpetrator of the abuse suffered by the claimant may be witnesses. Each of them is provided the opportunity to give evidence and be questioned by the adjudicator. [12] Although heard as of right, the alleged perpetrator is a witness, not a party to the IAP proceeding. The alleged perpetrator and his or her counsel may not attend the hearing at the same time as the claimant without the advance consent of the parties.

Generally, government representatives and church entities may always attend while a claimant testifies without the claimant’s consent.

However, a claimant’s consent to attendance will be required if a church entity and alleged perpetrator have retained the same counsel. [13] The restrictions on attendance by alleged perpetrators reflect the desire of the parties to the settlement to provide a fair hearing, while at the same time precluding, as far as possible, further trauma or psychological distress to claimants. [14] The restrictions regarding alleged perpetrators do not however operate to give the adjudicators an unlimited discretion in dealing with claims.

The IAP also provides for specific responsibilities on the part of adjudicators in establishing the evidentiary foundation of an IAP claim. For example, when an adjudicator questions a witness, he or she is obliged to “draw out the full story” and “test the evidence that is given”. [19] [References omitted.] [ 52 ] According to the allegations of the action in nullity, it is obvious that the adjudicator followed the procedure thus described by Winkler J.

In this regard, even though the conclusions of the petition contemplate only a specific decision of the adjudicator, in reality they clearly and unambiguously raise questions about the process followed in similar circumstances across Canada. [ 53 ] In Quebec civil law, the benefits granted the “releasees” by the IRSSA could be considered a stipulation for another. The IRSSA, however, specifically designates the laws of Ontario as the applicable law.

Nevertheless, while the possibility of stipulating for another is more limited in common law, it is not non-existent, especially when it offers a third party a means to be exempted from a lawsuit. Where an agreement specifically grants a benefit to a third party, common law courts generally refuse to allow the third party to sue under that agreement.

Where the benefit in question constitutes an exemption from liability, however, those courts are more inclined to allow the third party to invoke the agreement as a defence (estoppel). [20] But that possibility does not make the third party a party to the agreement. [ 54 ] Thus, the benefit granted by the IRSSA to the appellant does make him a party to the agreement. This leads me to reject the argument accepted by the trial judge whereby the definition of the term “defendants” in subparagraph 1(

k) of the judgment of Tingley J. would make the appellant a party to the IRSSA transaction. Although that definition confirms Tingley J.’s intention to give the conclusions of his judgment a broad scope, it does not modify the clear terms of the IRSSA. The definition of the word “defendants” in the judgment of Tingley J. is set forth solely for the purpose of that judgment and those that will stem from it. [ 55 ] Therefore, the issue in dispute is whether the judgment of Tingley J., not the IRSSA, can be set up against the appellant.

Indeed, the judgment of Tingley J. confirming the agreement can have a larger scope than the agreement. Judgments may have some effect on third parties through, inter alia , the mechanism of representation. [21] And indeed, although it does not make him a party to the agreement, the benefit granted the appellant by the IRSSA is relevant in determining whether he was represented by his religious order in the legal proceedings that led to the judgment of Tingley J. [ 56 ] The concept of representation is an important notion in res judicata.

It makes it possible to temper the requirement of the identity of the parties. [22] Professor Jean-Claude Royer explains as follows: [23] [ translation ]

The identity of the parties required to invoke lis pendens or res judicata is legal, not merely physical . As a general rule, the legal identity of the parties coincides with the physical identity, since a person normally institutes a proceeding in his or her own name. Sometimes, a party that is physically present in a trial is not the true legal party. In addition, judicial decisions have an effect on a number of people who are not physically present in the dispute. This stems mainly from the rules of representation and the transferability of rights and obligations. [Emphasis added.] [ 57 ] In Roberge v .

Bolduc , rendered by the Supreme Court in 1991, L’Heureux-Dubé J. explained that “[t] here are several ways in which representation of parties, amounting to juridical identity may occur”. [24] She refused, however, to provide an exhaustive list of the situations in which the concept of representation can occur. In the final analysis, it is a question of fact: [25] The examples of representation by one party of another are too numerous to list or discuss here . Aubry and Rau, op. cit. , at pp. 335-56, review them in detail and even such review is not necessarily exhaustive.

Representation may depend on the facts of the particular case and the interests of the parties involved .

Suffice it to say that, for the identity of parties in so far as it relates to res judicata , juridical identity is all that is required. [Emphasis added. ] [ 58 ] The appellant contends that [ translation ] “no evidence was adduced before the trial judge concerning the exercise of such representation of the members of the religious communities before Tingley J. or in the context of the conclusion of the IRSSA” and that [ translation ] “a proceeding against [religious communities] does not affect the rights of [their] members, who must be personally sued to be bound by an eventual judgment or settlement”. [ 59 ] Professor Royer, however, has noted that [ translation ] “if there is identity of cause and of object, a decision rendered against a party is res judicata in regard to an association or body representing the person and vice versa”. [26] Thus, the notion of representation is broader in scope than agency.

While obviously, agents can represent their principals, in res judicata matters, principals may also represent their agents. This was demonstrated in a recent decision of this Court. [ 60 ] In Ungava Mineral Exploration Inc. v. Mullan , [27] Bich J.A., for the Court, upheld the dismissal of a suit against the officers, managers and directors of a corporation on the ground that they had been represented by that corporation for the purposes of res judicata .

In that case, the appellant corporation had first instituted an arbitration proceeding against Canadian Royalties Inc. (CRI) seeking the cancellation of a contract it had entered into with that corporation. It was only after these efforts failed that the appellant corporation decided to institute an action for damages before the civil courts against its directors, not against CRI. [ 61 ] The appellant in Ungava Mineral argued that res judicata did not apply because there was no identity of parties or identity of object.

Furthermore, it contested the application of the mechanism of representation: [ translation ] “while the administrators or directors of a corporation can ultimately represent it, the opposite is not true”. [28] Rejecting that argument, Bich J.A. wrote the following: [29] [ translation ] [93] As we know, in this case, the arbitration proceeding and the legal proceeding are based on the same facts and involve exactly the same persons. In both cases, it is a matter of scrutinizing the behaviour of Mr. Mullan and Mr.

Durham as CRI officers, managers, directors and agents (in that they acted on its behalf, not on their own behalf). In the case of the legal proceeding, the respondents were sued personally for those acts. In the case of the arbitration proceeding, the appellant was suing CRI, to which it attributed liability for the acts of those who embodied and represented it. If, in that framework, the arbitrator had heard the evidence of the appellant’s allegations, he should obviously have ruled on the behaviour of the respondents, which was at the heart of the dispute.

In that sense, it cannot be denied that the respondents, through CRI (which they headed and represented at all relevant times), were directly involved in the arbitration dispute and were implicitly or virtually parties to it. … In short, each respondent’s capacity as a party in the arbitration proceeding was implicit or virtual, and can be likened to that of CRI for the purposes of the application of the principle of res judicata . . . . [95] I therefore believe that there was identity of the parties. [96] It is interesting to note in passing that a judgment rendered in a legal proceeding instituted against Mullan and Durham, if such action had been instituted first, would have had the effect of res judicata to the benefit or detriment of CRI, since the acts of the two respondents were committed in the performance of their duties for CRI (assuming, in other respects, identity of cause and of object).

The opposite, in the circumstances, denotes a certain kind of mutuality and reciprocity, and therefore does not seem inappropriate .

[Emphasis added.] [Citation omitted.] [ 62 ] Applying these principles to the present case, it can be concluded that there is the same kind of mutuality and reciprocity. Indeed, much like CRI, the appellant’s religious community, the Oblates, was sued for, among other things, acts allegedly committed by its members in Indian residential schools.

Hence, if a judge had heard the evidence regarding all these allegations and, more specifically, if he had heard, in the context of an individual claim filed by R.J., the evidence of the allegations of abuse he made before the adjudicator, the judge would obviously have had to come to a conclusion on the appellant’s behaviour.

Although the context of the pan-Canadian class action settled by the adoption and then the approval of the IRSSA makes things enormously more complex, the basic template remains the same. [ 63 ] Moreover, the release in the IRSSA and then the judgment of Tingley J. for the members of the religious communities involved argues further still in favour of the application of the principle of representation to this case.

As the respondent pointed out, it would indeed be disturbing for the appellant to be released by the judgment of Tingley J. and evade the [ translation ] “specific obligations of that decision, aimed particularly at the parties and perpetrators contemplated by the agreement, especially the precedent obligation to obtain the Court’s leave to institute an action in nullity”. [ 64 ] In this regard, another argument raised by the respondent justifies the rejection of the appellant’s main contention. [ 65 ] It is common ground that the appellant participated as a witness in two other claims.

They were dismissed by an adjudicator. The hearings in those two cases were held prior to the hearing that gave rise to the adjudicator’s decision impugned by the appellant’s petition. [ 66 ] Paragraph 2 of the Court Administration Protocol attached to Tingley J.’s March 8, 2007, judgment [30] states the following: All matters that require court orders, directions or consideration, will be brought to the attention of the Administrative Judges at first instance by the filing of a Request For Direction.

The Request will identify the party, counsel or other entity with standing in respect of the Agreement who is bringing the matter forward, the matter(

s) in issue, the relief requested, whether it is on consent, or if opposed, the various positions of those in favour and those opposed. It is expected that all parties, counsel and entities with standing will cooperate to the extent that a single Request that fairly and accurately sets out the issue(

s) and their positions in brief form is filed. The Judges do not expect to receive initial Requests that exceed 3 pages in length. [Emphasis in original.] [ 67 ] At any time prior to his testimony before the adjudicator in R.J.’s case, the appellant could have applied to Winkler J. by means of a request for directions, stating his grievances as to the legality of the procedure to be followed before an adjudicator, which he did not do. In fact, Winkler J. has expressed the opinion that a request for directions is the only possible recourse. [31] 15.

It is tempting to view a class action settlement with a claims administration or assessment process as continuing litigation. Nonetheless, such a view is incorrect. All class action settlements must be approved by a court. When an approval order is issued, it constitutes the final order of judgment with respect to the litigation, regardless of whether the settlement provides for benefit distribution by way of a continuing claims administration or assessment process. The underlying litigation, or the lis between the parties, does not continue but instead merges in the settlement. 16.

The claims administration or assessment process is simply a creature of the agreement giving effect to the settlement. In essence, it is a distribution process under which the entitlement of each individual class member to share in the compensation available is determined. Moreover, the fact that a settlement may contemplate such a process does not alter the finality of the court orders approving the settlement.

That process simply becomes a term or terms of the order of judgment. [ 68 ] Lastly, the appellant claims that the judge erred in concluding that the application for leave in question had to be presented to Tingley J. He explains that the expression “this court”, found in paragraph 30 of the judgment of Tingley J., refers generally to the Superior Court of Quebec, not specifically to Tingley J. At least that is what the definition of the term “Court” in subparagraph 1(

j) of that judgment indicates. [ 69 ] This

interpretation is correct. That was not, however, the deciding factor leading the judge to refer the case to Tingley J. The choice was justified primarily by

article 1001 C.C.P . and the principle that the same judge should hear the entire class action. The judge did not err on that point. [ 70 ] The appellant also seems to question the impartiality of Tingley J. He writes the following in his factum:

[translation] 126. It is moreover difficult to conceive how Tingley J. could have the necessary appearance of independence and of impartiality whenhe confirmed and approved the IAP process that the respondent now accuses the appellant of calling into question through his action innullity. As presented by the respondent, Tingley J. would, as it were, thereby be sitting in appeal from his own decision. [71] These arguments have no merit.

First of all, impartiality is presumed, and much more is required to establish a reasonable apprehension of bias.[32] It is also not accurate to affirm that requiring the appellant to obtain leave from Tingley J. places the judge in aposition of sitting in appeal from his own decision. In this case, deciding whether the applicant’s action should be authorized will notlead the judge to reassess whether it was appropriate in his December 15, 2006, judgment to generally impose a precedent obligation toobtain leave to institute a proceeding that could affect the application of the IRSSA.

One in no way prevents the other. [72] Lastly, the appellant contends that the respondent was not justified in seeking, in the conclusions of his motion, the transfer ofthe case to the judge administrator for Eastern Canada. This argument is not relevant since the respondent has not filed an incidentalappeal and in his factum reiterates his request for transfer to the judge administrator for Eastern Canada only as an alternative. Therefore,there is no need to decide this issue.

V CONCLUSION [73] I would dismiss the appeal with costs, but renew the six-month time period granted the appellant by the judgment under appeal toenable him to file in the record of the Superior Court valid evidence that he has obtained leave to proceed with his action in nullity. ALLAN R. HILTON, J.A. [2] At the hearing, counsel for the adjudicator informed us that the redacted parts of the decision were not related to J.C., or discussedthe amount of compensation to be paid to R.J. under the Indian Residential Schools Settlement Agreement. [3] Fontaine v. Canada (Attorney General), 2006 QCCS 7306. [5] Bosum v.

Canada (Attorney General), 2006 QCCS 5794. [6] Baxter v. Canada (Attorney General), (ON SC), [2006] O.J. No. 4968, 83 O.R. (3d) 481. [7] Fontaine v. Canada (Attorney General), 2007 QCCS 1135. [8] Northumberland General lnsurance Co. v. Genziuk, [1981] C.A. 357 at 360. See also Denis Ferland and Benoît Emery, Précis deprocédure civile, Vol. 1, 4th ed. (Cowansville, Qc.: Yvon Blais, 2003) at 295–296. [9] A similar paragraph is found in the other judgments of the superior courts of the other provinces authorizing the pan-Canadianclass action. [10] Crevier v.

A.G. (Québec) et al., (SCC), [1981] 2 S.C.R. 220. [11] Peter W. Hogg, Constitutional Law of Canada, loose-leaf, Vol. 2, 5th suppl. ed. (Toronto: Carswell, 2007, update 1 in 2010) at40-32. [13] 2001 SCC 81 , [2001] 3 S.C.R. 575; 2001 SCC 81. [14] (SCC), [1986] 1 S.C.R. 863 at 882. [15] 2003 SCC 62 , [2003] 3 S.C.R. 3. [17] The Cloud class action was certified in 2004: Cloud v. Canada (Attorney General), (ON CA), 247 D.L.R.(4e) 667, 73 O.R. (3d) 401 (Ont. C.A.). That class action was not joined with the others but is nevertheless contemplated by the IRSSA. [19] Fontaine v.

Canada (Attorney General), September 26, 2011, 00-CV-192059CP (Ont. Sup. Ct. J.). [20] See London Drugs Ltd. v. Kuehne & Nagel International Ltd., (SCC), [1992] 3 S.C.R. 299. See also J.W.

Neyers, “Explaining the Principled Exception to Privity of Contract”, (2007) 52 R.D. McGill 757 and John Manwaring, Les Contrats,Common Law en poche, Vol. 12 (Cowansville, Qc.: Yvon Blais, 1999) at 59-61. [21] See also

article 489 C.C.P., which offers a remedy for revocation of a judgment to a third party “whose interests are affected by ajudgment rendered in a suit in which neither he nor his representatives were summoned”. [22] See

article 2848 C.C.Q. [23] Jean-Claude Royer & Sophie Lavallée, La preuve civile, 4th ed. (Cowansville, Qc.: Yvon Blais, 2008) No. 823 at 698. [24] (SCC), [1991] 1 S.C.R. 374 at 411. [26] Royer and Lavallée, supra note 23, No. 824 at 699. Emphasis added. See also in this regard the circumstances considered in DelBurgo v. Alitalia Linee Aeree Italiane S.p.A., (QC CS), [2000] R.J.Q. 2949 (Sup. Ct.). [27] [2008] R.J.Q. 1765, 2008 QCCA 1354. [28] Ibid. at para. 84. [29] Ibid. at paras. 93, 95 and 96. [30] Supra note 7. [31] Fontaine v. Canada (Attorney General), 7 March 2011, 00-CV-192059CP (Ont. Sup. Ct.

J.). [32] Quebecor inc. v. Société Radio-Canada, [2011] R.J.Q. 333, 2011, QCCA 387, at para. [4], referring to the judgment of theSupreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259 at paras. 59–60.