Fontaine v. Canada (Attorney General), 2021 BCSC 164

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fontaine v. Canada (Attorney General), 2021 BCSC 164 Date: 202102 03 Docket: L051875 Registry: Vancouver Between: Larry Philip Fontaine et al Plaintiffs And The Attorney General of Canada et al Defendants Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50 Before: The Honourable Madam Justice B.J. Brown Reasons for Decision (Motion to Vary Independent Assessment Process Sunset Order) Counsel for the Moving Parties, Edmund Metatawabin, and St.

Anne’s IRS IAP Claimants T-00185, S-20774 and S-16753 Fay Brunning Michael Swinwood Counsel for the Attorney General of Canada: Catherine Coughlan Brent Thompson Counsel for Independent Counsel: David Schulze Counsel for the Assembly of First Nations Stuart Wuttke Jeremy Kolodziej Counsel for Merchant Law Group LLP Evatt Merchant Counsel for Wallbridge, Wallbridge et al. Geoff Adair Counsel for the Chief Adjudicator Catherine Boies Parker, Q.C. John Trueman Counsel for the Court: Brian Gover Place and Dates of Hearing: New Westminster, B.C. December 31 , 2020 Place and Date of Judgment: New Westminster, B.C.

February 3, 2021 Introduction [ 1 ] By Notice of Motion dated December 17, 2020, Edmund Metatawabin and three individuals referred to as “St. Anne’s IRS IAP Claimants T-00185, S-20774 and S-16753” (the “Moving Parties”) sought a variation of this court’s order dated May 29, 2020 (known as the “IAP Sunset Order”). The variation sought is an exemption from destruction of all documents in the possession of Canada related to St.

Anne’s Indian Residential School, pending outcomes of Request for Direction (“RFD”) proceedings before Justice Glustein of the Ontario Superior Court of Justice and “[a]ll existing and possible […] litigation, pertaining to breach of the [Indian Residential Schools Settlement Agreement or “IRSSA”] for St. Anne’s IRSSA Class members by Canada, and/or to civil claims against claimant counsel.” [ 2 ] The RFD proceedings relate to the operation of St. Anne’s Indian Residential School (“St. Anne’s IRS”) in Fort Albany, Ontario and are being conducted in that province.

The Ontario Court of Appeal has directed that because the Moving Parties are members of the Ontario class, it is the Ontario Superior Court of Justice that has the jurisdiction to hear and determine their RFD. [1] [ 3 ] The hearing of the motion proceeded by teleconference on December 31, 2020. On reviewing the written submissions filed by the Moving Parties, the Assembly of First Nations and Independent Counsel and the draft order proposed by Canada, it was apparent that the parties were in agreement that the IAP Sunset Order should be varied. The issue was as to the terms of the order.

At the conclusion of the hearing, I reserved my decision and made an interlocutory order suspending the operation of paragraphs 5 and 6 of the IAP Sunset

Order pending further order of the court. [ 4 ] What follows are my reasons for varying the IAP Sunset Order through the means of the order of this court attached as Appendix “A” to these reasons. Background [ 5 ] The Indian Residential Schools Settlement Agreement (“IRSSA” or “Settlement Agreement”) remains Canada’s largest and most complex class action settlement. In 2005 and 2006, various stakeholders negotiated the IRSSA with the goal of achieving a “fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools” (“IRS”, whether singular or plural).

Despite its importance to the goals of promoting healing and achieving reconciliation with Indigenous Canadians, fundamentally the IRSSA remains a contract. [2] This court is one of nine provincial and territorial superior courts (the “Supervising Courts”) that approved the IRSSA in December 2006 and January 2007 on substantially identical terms. [ 6 ] Together with the IRSSA, the Courts’ Implementation Orders and the Court Administration Protocol appended to those orders govern the IRSSA’s administration. [ 7 ] The Court Administration Protocol required the Courts to designate the nine judges who heard the motions for approval of the Agreement, or their successors as “Supervising Judges” and stipulated that from among the “Supervising Judges”, two “Administrative Judges” should be designated, one “Eastern Administrative Judge” and one “Western Administrative Judge”.

I have been both the Supervising Judge for British Columbia and the Western Administrative Judge since 2009. Justice Paul Perell of the Ontario Superior Court of Justice has served as the Eastern Administrative Judge and the Supervising Judge for Ontario since 2013. [ 8 ] The Court Administration Protocol also provided for “a streamlined process for addressing all matters that require court orders, directions or consideration during the course of the [IRSSA’s] administration”. This process involves bringing an RFD.

The Supreme Court of Canada has recognized the importance of ongoing judicial supervision of the IRSSA’s administration. [3] To date, that supervision has entailed determination of approximately 140 RFDs. [ 9 ] The IRSSA established two compensation streams: a common experience payment (“CEP”), payable to anyone who attended an IRS, and the Independent Assessment Process (“IAP”), which is the inquisitorial process provided by the IRSSA for adjudicating individual claims made by former IRS students in relation to physical and/or sexual abuse that they suffered.

Importantly, the parties to the IRSSA contracted for guarantees that information provided in the course of IAP hearings will remain private. [4] It was in order to protect these privacy interests that what is referred to below as the “Claim Records Order” was made in rem . [ 10 ] The IRSSA’s administration is nearing completion.

The latest statistics available on the Indian Residential Schools Adjudication Secretariat’s website, [5] indicate that as of September 30, 2020, 38,276 IAP claims – all of those received – have been resolved. [ 11 ] There are three related orders that generally govern the management and disposition of what are known as “IAP Documents”. These are the: a. “Claim Records Order” (sometimes referred to as the “ In Rem Order”) made August 6, 2014, by Justice Perell in Fontaine v.

Canada (Attorney General) , 2014 ONSC 4585 , varied 2016 ONCA 241 , affirmed 2017 SCC 47 . b. “Notice Program Order” made July 4, 2018 by Justice Perell in Fontaine v. Canada (Attorney General) , 2018 ONSC 4179 . c. “IAP Sunset Order” made May 29, 2020 by this court, and which the Moving Parties seek to vary. [ 12 ] The Claim Records Order declared that IAP Documents — a term defined in

Schedule “A” to that Order [6] — are private and confidential and must not be used or disclosed by anyone for any purpose other than those purposes set out in the Order. [7] It provided a mechanism whereby IAP claimants could elect to share certain of their own records with the National Centre for Truth and Reconciliation, [8] and required the Chief Adjudicator to retain certain records (defined as “IAP Retained Documents”) for 15 years for that purpose. [9] The Claim Records Order mandates the destruction of all other IAP Documents (i.e., those that do not fall within the definition of IAP Retained Documents”) “on the completion of the relevant IAP Claim, including the exhaustion of review or appeal rights or other legal proceedings in respect of the claim”. [10] [ 13 ] The Notice Program Order suspended certain destruction obligations until an as of then to-be-determined “IAP Sunset” date, in order to facilitate the continuing operations of the IAP.

Canada’s destruction obligation was suspended in its entirety, and the Chief Adjudicator’s destruction obligation was suspended in respect of three items only: the Secretariat’s SADRE case management system data, the IAP Decision Database, and the Master List of Admissions. [11] [ 14 ] The IAP Sunset Order provided for a number of matters related to the winding-up of the IAP, including specific dates for lifting the suspensions made in the Notice Program Order and completing the destruction mandated in the Claim Records Order. [12] The IAP Sunset Order lifted these suspensions effective December 31, 2020. [13] Paragraph 5 directed Canada to destroy the IAP Documents in its possession by March 31, 2021. [14] Paragraph 6 similarly directed the Chief Adjudicator to destroy documents in his possession (i.e., the SADRE case management system, the IAP Decision Database and the Master List of Admissions), also by March 31, 2021. [15] Paragraph 7 ordered the Chief Adjudicator to assemble IAP Retained Documents in his possession and transfer them to a records agent, and to destroy any remaining IAP Documents in his possession, also by that date. [ 15 ] Paragraph 8 of the IAP Sunset Order provided as follows: The dates specified in paras. 5, 6, and 7 of this order are subject to any further order of this Court in the event that one or more IAP claims are not resolved by the Adjudication Completion Deadline [16] or otherwise. [17]

[ 16 ] As is reflected in paragraph 1 of these reasons, the variation to the IAP Sunset Order sought by the Moving Parties was very broad. Canada urged a narrower approach to the IAP Sunset Order’s variation. At the hearing, Canada proffered a draft order which would have varied paragraph 5 to permit St. Anne’s claimants whose IAP claims were concluded before January 2014 (the date of the order made in relation to St. Anne’s IRS #1) to obtain a temporary exception from the destruction deadlines by authorizing Canada to preserve documents relating to their claims.

The authorization would have to be in writing, meet certain other requirements, including (in the case of claimants who have not brought any litigation regarding their IAP claims), an acknowledgement that Canada’s preservation of documents under the claimant’s authorization would extend only until March 31, 2021 unless the claimant filed and served an RFD or commenced a civil action before that date . RFD Proceedings in Ontario [ 17 ] The RFD proceedings in Ontario are focused solely on St. Anne’s IRS. They have their origins in two related decisions of Justice Perell: a decision cited as Fontaine v.

Canada (Attorney General) , 2014 ONSC 283 (“St. Anne’s IRS #1”) and the subsequent decision in Fontaine v Canada (Attorney General) , 2015 ONSC 4061 (“St. Anne’s IRS #2”) . [ 18 ] In St. Anne’s IRS #1, Justice Perell ordered Canada to produce as part of the IAP Canada’s copies of documents generated and obtained by the Ontario Provincial Police in the course of an investigation pertaining to St. Anne’s IRS and transcripts in relation to the resulting criminal proceedings. [18] Justice Perell also ordered Canada to revise the “School Narrative” and Person of Interest (“POI”) Reports relating to St.

Anne’s IRS. [19] Further, Justice Perell held the court has the jurisdiction to re-open decided IAP claims on a case- by-case basis. [20] [ 19 ] In St. Anne’s IRS #2, Perell J. ordered Canada to revise the School Narrative and POI Reports for St. Anne’s IRS. Justice Perell further ordered Canada to provide to the Indian Residential Schools Adjudication Secretariat unredacted copies of any publicly available court records, including transcripts and pleadings. In addition, Justice Perell ordered Canada to provide the court records to IAP claimants or their lawyers for IAP hearings about St.

Anne’s IRS or another residential school in the James Bay area, Bishop Horden IRS, upon request. [21] [ 20 ] Justice Perell has heard a number of RFDs relating to St. Anne’s IRS. [22] However, in 2020 Perell J. recused himself from further involvement in proceedings involving St. Anne’s IRS. [ 21 ] The Moving Parties are the Requestors in what is known as the “Metatawabin RFD #2”, which was initiated in May 2020 and will be heard by Justice Glustein in Ontario.

In their RFD, [23] the Moving Parties seek a number of directions and orders that may be seen as preliminary to applications to re-open decided IAP claims – a jurisdiction that Justice Perell recognized in St. Anne’s IRS #1. [24] The relief sought includes what was described as “an Ancillary Direction that pending further directions […] the Chief Adjudicator and the [IRS Adjudication Secretariat] shall not destroy any IAP Documents […] if they concern IAP claims that mention St.

Anne’s IRS or that mention a Person of Interest who is the subject of one of the POI Reports.” This aspect of what is sought in the RFD would require variation of the IAP Sunset Order, hence the motion to this court. Submissions [ 22 ] On behalf of the Moving Parties, Ms. Brunning submitted that a broad order exempting IAP records from the IAP Sunset Order’s destruction provisions is required. As of November 1, 2013, 166 IAP claims by St. Anne’s IRS survivors had been concluded, none of whom had the benefit when pursuing their claims of the additional documents subsequently ordered produced by Perell J. in St.

Anne’s IRS #1. Since then, more claimants’ claims have been concluded without revised POI Reports and other revised documents. The identities of these claimants are unknown. Canada has not provided a list identifying them. [ 23 ] It was Ms. Brunning’s submission that if the Metatawabin RFD #2 Requestors (the Moving Parties in this court) succeed before Glustein J., insofar as the St. Anne’s IRS IAP claimants whose claims were decided without the benefit of the additional documents are concerned, “[T]he IAP is not done yet.” [ 24 ] Ms.

Brunning further submitted that the court had no discretion but to grant the variation sought by the Moving Parties. She pointed out that while the order they seek is broad, the Moving Parties have not sought for the identities of any IAP claimants to be provided to them. It was her submission that Canada’s proposed order would encroach on the jurisdiction of the Ontario Superior Court of Justice. [ 25 ] On behalf of Independent Counsel, Mr.

Schulze submitted that the essence of the Metatawabin RFD #2 is that Canada was obliged to revise all of the POI Reports pursuant to the orders resulting from the decisions in St. Anne’s IRS #1 and St. Anne’s IRS #2, but failed to do so in relation to the concluded claims. The debate in the Ontario Superior Court of Justice will be whether Canada complied with Justice Perell’s orders. Under the terms of the Claim Records Order, most of the claims documents will continue to exist until 2027. Like other School Narratives, the St.

Anne’s IRS School Narrative does not fall into the category of IAP Documents, and the motion is therefore not concerned with it. [ 26 ] Mr. Schulze submitted that the order Canada proposed should not be adopted. He contended that it is not practical to ask survivors of St. Anne’s IRS to take action by March 31, 2021 to ensure that documents that may be required to reopen their IAP claims are preserved. Mr.

Schulze described many of them as traumatized and much more comfortable in Cree than English, and he pointed out that they live in remote communities with limited Internet access. [ 27 ] Independent Counsel proposed an order that would capture anything in relation to St. Anne's IRS still in existence and in the possession of Canada or the Chief Adjudicator, the goal being to preserve the POI Reports, given that the debate is whether they should have been revised or not. Mr. Schulze described the required order as “something simple that just preserves the status quo”.

[ 28 ] The AFN took the position that the administration of the IRSSA and the IAP in particular have not been completed. Because of the IAP Sunset Order’s potential material impact of ongoing litigation related to the IRSSA, that order must be varied to exempt St. Anne’s documents until the ONSC issues a decision and all St. Anne’s claims are concluded. Mr. Wuttke focused primarily on the need to preserve the POI Reports [25] and submitted that variation of the IAP Sunset Order is necessary to achieve justice for the St. Anne’s IRS Claimants, whose claims may be frustrated if these documents are destroyed. Mr.

Wuttke informed the court that the AFN could not agree with Canada’s draft order, as it would only give St. Anne’s IRS IAP claimants with concluded claims until March 31, 2021 to request preservation of the POI Reports. Mr. Wuttke expressed the concern that there may be some St. Anne’s IRS IAP claimants whose claims were concluded without the benefit of the revised School Narratives and POI Reports who are unaware that these documents were to be updated pursuant to the orders of Perell J. arising out of St. Anne’s IRS #1 and St. Anne’s IRS #2. [ 29 ] On behalf of the Merchant Law Group, Mr.

Merchant supported the position advanced by Ms. Brunning on behalf of the Moving Parties. It would be better, Mr. Merchant submitted, to err on the side of preservation. Mr. Merchant submitted that the Ontario litigation is still at an early stage. [ 30 ] Ms. Coughlan submitted that Canada’s draft order charts a reasonable course between immediate destruction and preserving confidential documents indefinitely. Canada’s draft order does not deal with disclosure of or access to documents; it only deals with their preservation.

Canada is obliged to destroy these documents by the terms of the Claim Records Order made by Justice Perell in 2014 and subsequently upheld by the Supreme Court of Canada. The issue, Ms. Coughlan submitted, is whether the St. Anne’s IRS IAP claimants have an expectation of absolute confidentiality in relation to the documents. [ 31 ] Ms. Coughlan adopted the following the following principles which the Chief Adjudicator submitted are helpful in framing any order in relation to the records at issue in this motion: a.

Records should only be preserved if it is necessary to do so for the purposes of adjudicating IAP claims; b. Records should only be kept for as long as necessary to adjudicate IAP claims, and then securely destroyed; and c. During any period of retention, access to the records should be restricted. [26] [ 32 ] Ms. Coughlan submitted that in light of these principles, the remedy sought by the Moving Parties is overbroad. Moreover, Ms. Coughlan submitted, the claimants must have a say in this matter.

She submitted that Canada’s draft order would do so and achieve the right balance by limiting the documents to be retained to those in relation to what she termed “a reasonable number of claims that might very well be implicated by success [in relation to the Metatawabin [RFD] #2”. [ 33 ] Ms.

Coughlan characterized Canada’s draft order as a minimal intrusion on the IAP Sunset Order and submitted that the authorization form appended to the order would play a crucial role in protecting the right of IAP claimants to insist on the absolute confidentiality of their IAP claims that was guaranteed by the IRSSA. [ 34 ] As to the March 31, 2021 deadline for claimants to provide their authorization, Ms. Coughlan pointed out that that St. Anne’s IRS #1 was determined by Justice Perell almost seven years ago, so St.

Anne's IRS IAP_claimants have had notice since 2014 of the new materials that were placed into the IAP.

In her submission, it would be unreasonable to go later than March 31, 2021 to allow claimants to exercise their rights. [ 35 ] Although he did not play an active role in the hearing of the motion and took no position as to its outcome, the Chief Adjudicator filed written submissions that emphasized that the records at issue contain intensely sensitive and private information, and that the Supreme Court of Canada has confirmed that they must be destroyed when no longer required for the purposes of the IAP. [ 36 ] Ms.

Boies-Parker informed the court that the Chief Adjudicator’s destruction IAP case-specific files has been ongoing for some time – since the Supreme Court of Canada’s 2017 decision in relation to the Claim Records Order if not before – and that as a consequence, relatively few St. Anne's IRS case-specific documents remain in the Chief Adjudicator’s possession. On the other hand, Canada's destruction obligations with respect to those documents were completely suspended by the IAP Sunset Order and Canada should therefore possess a complete set.

Discussion [ 37 ] As a preliminary matter, I raised the Moving Parties’ standing to seek relief on behalf of all IAP claimants who were former students at St. Anne’s IRS and whose IAP claims were determined without reference to the revised School Narrative and POI Reports. [27] In doing so, I pointed out that there has been no finding that Mr. Metatawabin acts in a representative capacity. Ms. Brunning submitted that the recent Ontario Court of Appeal decision [28] precludes me from making that decision, and that this is an issue for Justice Glustein to determine.

I determined that I could consider the interests of all St. Anne’s claimants without granting standing to Mr. Metatawabin. [ 38 ] Given their assertion that they represent others whose concluded IAP claims may be reopened (at least 160 of them), it is unfortunate that the Moving Parties waited so late in the administration of the IRSSA to initiate their RFD and then to amend it. The issue regarding at least the POI Reports from St. Anne’s IRS has been known since 2014.

But that is not a reason to deny a variation of the IAP Sunset Order. [ 39 ] That returns the analysis to the question of the appropriate order to make. [ 40 ] I have concluded that I lack the jurisdiction to adopt the draft order that Canada has put forward. Nonetheless, I can well understand the rationale underlying Canada’s draft order, with its focus on ensuring that those whose interests are at stake – the St. Anne’s IRS IAP claimants whose claims were determined without reference to the revised School Narrative and POI Reports – make the

decision about whether documents relevant to their claims should be preserved. The IRSSA rightly places a premium on the privacy of Indian Residential Survivors, a value that informed Justice Perell’s approach in the Claims Records Order case. [29] Put differently, like other IAP claimants, the St. Anne’s IRS IAP claimants have a right to destruction of the documents in question. By imposing a timeline for the St.

Anne’s IRS IAP claimants to authorize Canada to preserve documents, Canada’s draft order also takes into account the practical reality that with one exception, all IAP claims have been determined [30] and that the apparatus supporting the IAP is about to be dismantled. [ 41 ] What is required, in my view, is preservation of the status quo pending disposition of the Metatawabin RFD #2 by Justice Glustein. The object is to ensure that if Justice Glustein orders any of the concluded St.

Anne’s IRS IAP claims to be re-opened, the claimants will be in the same position that they would have been if the updated School Narrative and POI Reports had been available at the time of their IAP hearings.

This entails preservation by Canada and by the Chief Adjudicator as detailed in the order attached as Appendix “A” to these reasons for decision. [ 42 ] I recognize that insofar as it imposes an obligation on the Chief Adjudicator, the order contemplated by this decision is broader than the relief sought in the Moving Parties’ notice of motion, which referred only to “ documents in the possession of Canada ”.

However, all parties made submissions in light of the position advanced by Independent Counsel, and in any event, paragraph 8 of the IAP Sunset Order made the destruction of documents subject to further order of this Court in the event that one or more IAP claims are not resolved by December 1, 2020 or otherwise. It is appropriate and necessary take the unusual step of imposing an obligation on the Chief Adjudicator in order to ensure that any order granted by Justice Glustein is effective, should he order any of the concluded St.

Anne’s IRS IAP claims to be reopened. [ 43 ] To be clear, this decision preserves those documents; it does not grant anyone access to them. Disposition [ 44 ] For the reasons set out above, an Order will issue in the form of Appendix “A” to these reasons for decision. “B.J.

Brown J.” Appendix “A” Court File No.: L051875 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA 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 CAIBAIOSAIGIDMARK, 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 WOMEN’S 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 ATHBASCA, 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 QU’APPELLE, THE SYNOD OF THE DIOCESE OF NEW WESTMINISTER, 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 SOEURS DE NOTRE DAME-AUXILIATRICE, LES SOEURS DE ST.

FRANCOIS D’ASSISE, INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYANCITHE, LES SOEURS DE JESUS-MARIE, LES SOEURS DE L’ASSOMPTION DE LA SAINTE VIERGE, LES SOEURS DE L’ASSOMPTION DE LA SAINT VIERGE DE L’ALBERTA, LES SOEURS DE LA CHARITE DE ST.- HYACINTHE, LES OEUVRES OBLATES DE L’ONTARIO, LES RESIDENCES OBLATES DU QUEBEC, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES BAY), THE CATHOLIC DIOCESE OF MOOSONEE, SOEURS GRISES DE MONTREAL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARITE DES T.N.O., HOTEL-DIEU DE NICOLET, THE GREY NUNS OF MANITOBA INC.-LES SOEURS GRISES DU MANITOBA INC., LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE D’HUDSON – THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF HUDSON’S BAY, MISSIONARY OBLATES – GRANDIN PROVINCE, LES OBLATS DE MARIE IMMACULEE 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 PERES 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 EPISCOPALE 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 EPISCOPALE 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 EPISCOPALE 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 Proceeding under the Class Proceedings Act, R.S.B.C. 1996, c. 50 ___________________________________________________________________ ORDER __________________________________________________________________ BEFORE THE HONOURABLE ) THURSDAY, THE 31ST MADAM JUSTICE B.J BROWN ) DAY OF DECEMBER, 2020

THIS MOTION, made by Edmund Metatawabin and St. Anne’s Indian Residential School Independent Assessment Process Claimants T-00185, S-20774 and S 16753 (the “Moving Parties”) was heard by teleconference on December 31, 2020. UPON reading the written submissions of the Moving Parties, and reviewing the draft Order together with appendix submitted by Canada; AND UPON HEARING the oral submissions of counsel for the parties: ▪ Fay Brunning and Michael Swinwood, on behalf of the Moving Parties; ▪ Catherine A.

Coughlan and Brent Thompson, on behalf of the Attorney General of Canada; ▪ David Schulze, on behalf of Independent Counsel; ▪ Stuart Wuttke and Jeremy Kolodziej, on behalf of the Assembly of First Nations; ▪ Evatt Merchant, on behalf of Merchant Law Group LLP; and ▪ Catherine Boies Parker and John Trueman, on behalf of the Chief Adjudicator; THIS COURT ORDERS AND DIRECTS that: 1. Paragraph 5 of the IAP Sunset Order is hereby varied to add the following: Except that until further order of this court, the suspension (in para. 5(

b) of the Notice Program Order) of the requirement (set out in para. 7 of the Claim Records Orders) for Canada to destroy IAP Documents in its possession shall remain suspended in relation to the following IAP Documents pertaining to St. Anne’s IRS at Fort Albany, Ontario: a. All iterations of the School Narrative; b. Person of Interest (“POI”) Reports; c. IAP Decision Database; and d. Master List of Admissions. 2. Paragraph 6 of the IAP Sunset Order is hereby varied to add the following: Except that until further order of this court, the suspension (in para. 5(

c) of the Notice Program Order) of the requirement (set out in para. 7 of the Claim Records Orders) for the Chief Adjudicator to destroy the Secretariat’s SADRE case management system data, the IAP Decision Database and the Master List of Admissions shall remain suspended in relation to any of those documents that pertain to St. Anne’s IRS at Fort Albany, Ontario. 3. No costs are awarded in relation to this motion. By the Court:

_______________ Registrar