ALDERVILLE INDIAN BAND NOW KNOWN AS MISSISSAUGAS OF ALDERVILLE FIRST NATION, v. GIMAA JIM, 2017 FC 631

Date: 20170628 Docket: T-195-92 Citation: 2017 FC 631 Ottawa, Ontario, June 28, 2017 PRESENT: The Honourable Mr.

Justice Mandamin BETWEEN: ALDERVILLE INDIAN BAND NOW KNOWN AS MISSISSAUGAS OF ALDERVILLE FIRST NATION, AND GIMAA JIM BOB MARSDEN, SUING ON HIS OWN BEHALFAND ON BEHALF OF THE MEMBERS OF THE MISSISSAUGAS OF ALDERVILLE FIRST NATION BEAUSOLEIL INDIAN BAND NOW KNOWNAS BEAUSOLEIL FIRST NATION, AND GIMAA RODNEY MONAGUE, SUING ON HIS OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE BEAUSOLEIL FIRST NATION CHIPPEWAS OF GEORGINA ISLAND INDIAN BAND NOW KNOWN AS CHIPPEWAS OF GEORGINA ISLAND FIRST NATION, AND GIMAANINIIKWE DONNA BIG CANOE, SUING ON HER OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE CHIPPEWAS OF GEORGINA ISLAND FIRST NATION CHIPPEWAS OF RAMA INDIAN BAND NOW KNOWN AS MNJIKANING FIRST NATION, AND GIMAANINIIKWE SHARON STINSON HENRY, SUING ON HER OWN BEHALFAND ON BEHALF OF THE MEMBERS OF THE MNJIKANING FIRST NATION CURVE LAKE INDIAN BAND NOW KNOWN AS CURVE LAKE FIRST NATION, AND GIMAA KEITH KNOTT, SUING ON HIS OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE CURVE LAKE FIRST NATION HIAWATHA INDIAN BAND NOW KNOWN AS HIAWATHA FIRST NATION, AND GIMAANINIIKWE LAURIE CARR, SUING ON HER OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE HIAWATHA FIRST NATION MISSISSAUGAS OF SCUGOG INDIAN BAND NOW KNOWN AS MISSISSAUGAS OF SCUGOG ISLAND FIRST NATION, AND GIMAANINIIKWE TRACY GAUTHIER, SUING ON HER OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE MISSISSAUGAS OF SCUGOG ISLAND FIRST NATION Plaintiffs and HER MAJESTY THE QUEEN Defendant and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Third Party ORDER AND REASONS [ 1 ] The Plaintiff First Nations have applied for an order granting leave to have certain information treated as confidential in accordance with Rule 151 of the Federal Courts Rules, SOR/98-106 [Rules] which requires a party to obtain leave of the Court in order to have certain exhibits treated as confidential and not accessible by the public. [ 2 ] In particular, the First Nations seek to have certain information entered into the record by the Defendant Canada treated as confidential, the first being the Coldwater-Narrows Settlement Agreement [the Settlement Agreement], and the second being the names of persons recorded in the First Nations’ trust account records for the time period 1957-2017. [ 3 ] The names of persons contained in the First Nations’ trust account records are names associated with specific financial transactions.

The individuals themselves are not parties in this action except somewhat indirectly where those individuals are members of the First Nations in question. [ 4 ] For reasons that follow, I will grant leave to the First Nations to have the designated information treated as confidential. More specifically, the Settlement Agreement is to be sealed in its entirety and the names of persons in the identified documents are to be redacted. I.

Background [ 5 ] The First Nations commenced this action in 1992 against the Defendant claiming Canada breached its fiduciary obligations to the First Nations and failed to uphold the honour of the Crown in the making of the two 1923 Williams Treaties Canada defended. In addition to leading evidence on liability, both the First Nations and Canada led evidence on the question of damages should the First Nations’ claim succeed.

[6] Canada filed a copy of the Settlement Agreement, identified as Exhibit 302 during its cross-examination on August 28, 2015 of DanShilling, a Rama First Nations community witness. [7] Canada and three of the First Nations, the Chippewas of Georgina Island First Nation, the Beausoleil First Nation, and theChippewas of Rama First Nation were parties to the Settlement Agreement, a settlement not related to the present action.

The Chippewasof Nawash was also a party to this Settlement Agreement but is not a party in this action. [8] Canada maintains and controls the trust accounts for the individual First Nations pursuant to its statutory authority under the IndianAct, RSC, 1985, c. I-5 [Indian Act]. Canada filed exhibits that include personal financial information derived from the First Nations’ trustaccounts and Indian band pay lists through its joint expert witnesses Professors Eric Kirzner and Laurence Booth and also through its laywitness Mr.

Mathew LaCompte. [9] Professors Kirzner and Booth authored an expert report on equitable damages that was filed as Exhibit 79. One document, appendedas part of Exhibit 79 and identified as Tab 17, included financial information which included the names of individuals derived from thetrust accounts and band pay lists of Chippewas of Georgina Island First Nation. [10] Canada’s witness Mathew LaCompte compiled information from each of the First Nations’ trust accounts which included personalfinancial information.

The names of the persons associated with that financial information is contained in Exhibit 410, Appendix 2, Tab2, Appendix 4 Tab 2 and Appendix 6, Tab 2. The same type of personal financial information is contained in Exhibits 421, 423, 425,426, 431, 432, and 434. [11] For purposes of specifying the Settlement Agreement and names of persons the First Nations wish redacted, the First Nations alsolisted that same information in Exhibit A to the supporting Affidavit of Ms. Kelly Larocca. II. Parties’ Submissions A.

First Nations’ Position [12] The First Nations state the Settlement Agreement was the result of confidential negotiations between Canada and three of the FirstNations – the Chippewas of Georgina Island First Nation, the Beausoleil First Nation and the Chippewas of Rama First Nation – to settlea claim.

The terms of the Agreement had never been made publicly available. [13] The First Nations submit that oral or written communications made during settlement discussions for purposes of settlement are notadmissible as a matter of public policy, and this extends to final agreements when the agreement terms are treated as confidential by theparties.

The First Nations seek an order that the Settlement Agreement be sealed and so marked on the Court Exhibit List. [14] The First Nations also identified specific personal financial information derived from individual First Nations’ trust accounts andpay lists which they submit is confidential personal information and should be redacted from identified documents. The relevantdocuments are: i. Exhibit 79, Tab 17; ii. Exhibit 410, Appendix 2, Tab 2, and Appendix 6, Tab 2; and iii.

Exhibits 421, 423, 425, 426, 431, 432, and 434. [15] The First Nations say they have always maintained the confidentially of their individual trust accounts and individual Indian bandpay lists from both the general public and from each other because of the private financial information contained therein. [16] The First Nations submit treating the personal information as confidential is necessary. They submit there is serious and well-grounded risk to the First Nations and named individuals by having this information become public.

The First Nations submit there is astrong public interest in being able to rely on the government to maintain personal financial information as private and not to make itaccessible to the public. They rely on statements and findings regarding the importance of privacy interests in Canadian law made bySupreme Court justices in Edmonton Journal v Alberta (Attorney General), (SCC), [1989] 2 SCR 1326. [17] The First Nations seek only to have the names of identifiable persons redacted and not the financial transactions per se.

They furtherlimit their request to documents within the time period 1957-2017. [18] The First Nations submit that a judge hearing a motion to seal documents and mark them as confidential has the discretion to directthat the media be informed of the motion seeking a confidentiality order, but the decision on whether to give notice to the media is adiscretionary one and there is no absolute rule on giving notice. On this point, they rely on Ontario Superior Court jurisprudence,specifically M.(A.) v Toronto Police Service, 2015 ONSC 5684 , 127 OR (3d) 382 at para 5 [M.(A.)].

The First Nations believeno such order was required in the present case, given the limited scope of the requested order. B. Canada’s Position [19] Canada submits the First Nations’ request to seal the Settlement Agreement meets the test for a sealing order since the First Nationshave articulated and provided evidence as to the confidential nature of the document, the public interest in protecting the confidentialityand the potential harm or injury that could occur upon its release. [20] Canada does not agree with the First Nations about the redaction of names in the financial documents.

It submits the First Nations’

concerns only relate to maintaining privacy, which is not an interest of sufficient importance to meet the test for a confidentiality order. [ 21 ] Canada says the identified documents contain over 600 pages of material that relate to financial records of the First Nations. This evidence was adduced in the context of expert opinion evidence on the assessment of any compensation that may be owed.

Canada points out that the list of identified exhibits is not exhaustive because it does not include unidentified transcripts or underlying documents which are the sources of information for the listed exhibits, and which also contain personal financial information. [ 22 ] Canada says the type of financial information relating to the trust accounts of the First Nations is outlined in case law as being the type of evidence a Court is to use in assessment of equitable compensation, relying on Whitefish Lake Band of Indians v Canada (Attorney General) , 2007 ONCA 744 at paras 116-118 [ Whitefish Lake ].

Canada further states the First Nations acknowledge the trust account information " “forms a central part of this case.” " [ 23 ] Canada submits that the interest the First Nations articulated for redacting names from the trust account information is related to maintaining privacy, but the evidence presented does not posit any specific harm.

It only affirms the First Nations’ desire to maintain privacy. [ 24 ] Canada cites case law that recognizes the privacy of litigants is " “somewhat surrendered to the judicial process that is taking place to the claims that they filed… It is trite law that public process to and reporting of those proceedings is a price that the respondents must pay in the interests of ensuring the accountability of those engaged in the administration of justice” " ( Canada (Attorney General) v Almalki , 2010 FC 733 at para 29 ). [ 25 ] Canada thus argues that the privacy of litigants is not a sufficient ground for satisfying the test for a confidentiality order. [ 26 ] Canada made no submissions regarding notice to the media.

C. Ontario’s Position [ 27 ] Ontario made a brief oral submission, explaining no written submissions had been made because Ontario believed the law and issues were sufficiently canvassed by the submissions of the other parties. Ontario took no position regarding notice to the media. III. Legal Framework [ 28 ] The Federal Court Rules , SOR/98-106 [Rules] provide: " 151

(1) On motion, the Court may order that material to be filed shall be treated as confidential. " " Demonstrated need for confidentiality " "

(2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings. " " " " 151

(1) La Cour peut, sur requête, ordonner que des documents ou éléments matériels qui seront déposés soient considérés comme confidentiels. " " Circonstances justifiant la confidentialité " "

(2) Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer les documents ou éléments matériels comme confidentiels, étant donné l’intérêt du public à la publicité des débats judiciaires. " " " [ 29 ] The Privacy Act, RSC 1985, c.

P-21 provides (emphasis added): " 3 " " In this Act, " " … " " personal information " " means information about an identifiable individual … including, without restricting the generality of the foregoing " " … " " (b) " " information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, " " 3 " " Les définitions qui suivent s’appliquent à la présente loi.

" " … " renseignements personnels Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment : … " " " b) " " les renseignements relatifs à son éducation, à son dossier médical, à son casier judiciaire, à ses antécédents professionnels ou à des opérations financières auxquelles il a participé; "

"… " (

i) the name of the individualwhere it appears with otherpersonal information relating tothe individual or where thedisclosure of the name itselfwould reveal information aboutthe individual," " "...

" Use of personal information" " "7"" Personal information underthe control of a governmentinstitution shall not, without theconsent of the individual towhom it relates, be used by theinstitution except " "(a)"" for the purpose for whichthe information was obtained orcompiled by the institution or fora use consistent with thatpurpose; or " "(b)"" for a purpose for whichthe information may be disclosedto the institution undersubsection 8(2).

" Disclosure of personalinformation "8 (1)"" Personal informationunder the control of agovernment institution shall not,without the consent of theindividual to whom it relates, bedisclosed by the institutionexcept in accordance with thissection. " "Where personal informationmay be disclosed " "(2)"" Subject to any other Act ofParliament, personal informationunder the control of agovernment institution may bedisclosed " "… " "(d)"" to the Attorney General ofCanada for use in legalproceedings involving the Crownin right of Canada or theGovernment of Canada; " " " "… "

i) son nom lorsque celui-ci estmentionné avec d’autresrenseignements personnels leconcernant ou lorsque la seuledivulgation du nom révélerait desrenseignements à son sujet; "… " Protection des renseignementspersonnels" " "7"" À défaut du consentementde l’individu concerné, lesrenseignements personnelsrelevant d’une institutionfédérale ne peuvent servir àcelle-ci : " "a)"" qu’aux fins auxquelles ilsont été recueillis ou préparés parl’institution de même que pourles usages qui sont compatiblesavec ces fins; " "b)"" qu’aux fins auxquelles ilspeuvent lui être communiqués envertu du paragraphe 8(2).

" Communication desrenseignements personnels "8 (1)"" Les renseignementspersonnels qui relèvent d’uneinstitution fédérale ne peuventêtre communiqués, à défaut duconsentement de l’individu qu’ilsconcernent, que conformémentau présent article. " "Cas d’autorisation " "(2)""

Sous réserve d’autres loisfédérales, la communication desrenseignements personnels quirelèvent d’une institutionfédérale est autorisée dans les cassuivants : " "… "

d) communication au procureurgénéral du Canada pour usagedans des poursuites judiciairesintéressant la Couronne du chefdu Canada ou le gouvernementfédéral";"" " " " [30] Confidentiality orders are granted only in exceptional circumstances (Kirikos v Fowlie, 2016 FCA 80 at para 19).

They constituteexceptions to the principle of open court proceedings, which has been described as a "“hallmark of a democratic society”" (VancouverSun (Re), 2004 SCC 43 at para 23 [Vancouver Sun], reproduced in A.B. v Bragg Communications Inc., 2012 SCC 46 at para 11 [Bragg]).The principle "“is inextricably tied to the rights guaranteed by s. 2(b).

Openness permits public access to information about the courts,which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings”" (CanadianBroadcasting Corp. v New Brunswick (Attorney General), (SCC), [1996] 3 SCR 480 at para 23 [CBC], reproducedwith approval in Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 at para 36 [Sierra Club]).

In other words, theopen court principle is intended to promote transparency of the judicial decision-making process: it allows the public to access the sameinformation a Court has used to come to a decision, thereby allowing for well-informed critique and commentary.

[31] In Sierra Club, the Supreme Court of Canada set out the analytical approach to be applied to the exercise of judicial discretionwhere a litigant seeks a confidentiality order under Rule 151. After reviewing the general framework laid out in earlier decisions, notablyDagenais v Canadian Broadcasting Corp., (SCC), [1994] 3 SCR 835, [CBC], and R v Mentuck, 2001 SCC 76, theSupreme Court, at paragraph 53, reformulated the Dagenais/Mentuck test used in the criminal law context to state: A confidentiality order under Rule 151 should only be granted when: (

a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, inthe context of litigation because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweighits deleterious effects, including the effects on the right to free expression, which in this context includes the public interestin open and accessible court proceedings. [32] The Supreme Court also reiterated that three elements must be considered in the first part of the test, also known as the necessitystage: (1) the risk must be real and substantial, in that the risk is well grounded in the evidence and poses a serious threat to the interest inquestion; (2) the Court must be cautious in determining what constitutes an important interest, being "“alive to the fundamentalimportance of the open court rule”"; and (3) the Court must determine whether reasonable alternatives are available and must restrict theorder as much as possible (Sierra Club at paras 54-57). [33] The affected interests in Sierra Club were a commercial interest and the right to a fair trial.

The Supreme Court clarified that, to bedeemed an important interest, the interest in question cannot merely be specific to the party requesting the order; it must be one whichcan be expressed in terms of the public interest in confidentiality.

On this point, the Supreme Court referenced Justice Binnie’sexplanation in F.N. (Re), 2000 SCC 35 at para 10, that the open court rule only yields "“where the public interest in confidentialityoutweighs the public interest in openness” "(Sierra Club at para 55). [34] There is a heavy onus on an applicant to satisfy the Court that a derogation from the open court principle is justified, and it is not asufficient ground, as a matter of law, that a litigant desires to keep its affairs private (McCabe v Canada (Attorney General), (FC)). [35] Rule 151 speaks prospectively stating that the Court may order that material to be filed shall be treated as confidential.

However, inBah v Canada (Minister of Citizenship and Immigration), 2014 FC 693 at para 13 [Bah v Canada], Justice Bédard stated (emphasisadded): I find that

section 44 of the Federal Courts Act, RSC 1985, c F-7 as well as rules 4 and 26(2) of the Rules give the Court thepower to deal with a motion for a confidentiality order even where the documents in question have already been placed inthe Court file and to apply, by analogy, the principles set out in rules 151 and 152 (Sellathurai v Canada (Minister of Publicsafety and Emergency Preparedness), 2011 FCA 223 at para 20, 30, 32-38, 42-46; Sellathurai v Canada (Minister of PublicSafety and Emergency Preparedness), 2012 FCA 299 at para 16).

I also find for reasons that follow and despite the fact thatthe CBSA’s investigation report and references to its content in other documents are already in the public domain, that theinvestigation report should be declared confidential and that it is appropriate to issue a confidentiality order to protect theconfidentiality of the report to the extent possible.

In this case, the motion for a confidentiality order is for documents that were placed on the Court file in order to keep trial proceedingsmoving forward without adding unnecessary delay to what is a very long trial. [36] Lastly, in Vancouver Sun at para 26, the Supreme Court found that "“the open court principle is inextricably linked to the freedomof expression protected by s. 2(

b) of the Charter and advances the core values therein”". In M.(A.), Justice Nordheimer opined there is apresumption the media will be given notice of any motion where relief is sought that would have the effect of restricting the public’s,and thus the media’s, right of access to court proceedings. It is to be noted that the person in M.(A.) seeking confidentiality, namely toonly be identified by initials, was a party to the proceeding. IV. Issues [37] There are three main issues in this motion: a. What principles govern the issuance of a confidentiality order in the circumstances of this motion? b.

Has the test for issuance of a confidentiality order been met regarding sealing of the Coldwater-Narrows Settlement Agreement? c. Has the test for issuance of a confidentiality order been met regarding limited redaction of individual names from financialdocuments? There is a further question of whether the media should have been provided notice of the motion. V. Analysis A. Principles Governing the Issuance of a Confidentiality Order [38] The parties agree, correctly, that the issuance of a confidentiality order is governed by application of the Dagenais/Mentuck test as

reformulated in Sierra Club [the Dagenais/Mentuck Sierra Club test]. This test must be applied in a contextual manner. B. Coldwater-Narrows Settlement Agreement [39] Settlement negotiation privilege is a long accepted class privilege principle that accords with the important public policy interest ofencouraging settlements.

It complies with the parameters set by the Supreme Court of Canada for recognition of a class privilege becauseprotection of settlement negotiations is essential to operation of the legal system; without settlements, the administration of justice would be overburdened (David Paciocco and Lee Struesser, The Law of Evidence, 7th ed (Toronto: Irwin Law Inc., 2015) at 268-270). [40] The Settlement Agreement was the result of settlement negotiations.

The First Nations provided affidavit evidence from each of theChiefs of the Williams Treaties First Nations which were party to the Settlement Agreement establishing that: A. the Settlement Agreement was entered into to resolve a longstanding claim; B. it was the understanding of the First Nations that the materials and discussions stemming from the negotiations and the SettlementAgreement itself would be kept confidential between the parties; C. the Settlement Agreement was shared with the members of the respective First Nationsso they could make an informed ratificationvote but the Settlement Agreement was not made available to the general public; D. while Canada made public some general information on the history of the claim and its settlement, the Settlement Agreement wasnever made available to the general public; and E. the settlement amounts for the First Nations would be kept confidential so as to not adversely affect the First Nations in theireconomic development dealings with neighbouring communities. [41] This evidence establishes that Exhibit 302 was the result of settlement negotiations and all parties treated the Settlement Agreementas confidential.

Moreover, the evidence discloses a serious risk to an important interest if the Settlement Agreement and the settlementamounts are not kept confidential. The salutary effect of maintaining the confidentiality of the Settlement Agreement clearly outweighsthe deleterious effect of a slight infringement on the open court principle that an order to seal the document would have. [42] Although Exhibit 302 is already filed, the Rules provide for flexibility in the making a of subsequent confidentiality order (Bah vCanada). C.

Redaction of Individuals’ Names [43] The main point of contention between the First Nations and Canada is whether privacy interests can constitute an "“importantinterest”" for the purposes of the Dagenais/Mentuck/Sierra Club test – and if they can, whether the importance of protecting privacyinterests can justify infringing the open court principle. i.

Contextual Factors [44] There are several contextual considerations, not fully canvassed by any party, that must be taken into account in assessing theinterest at stake in the requested motion. [45] First, the First Nations’ trust account information is information held by Canada because of its statutory control over Indian moniespursuant to the Indian Act and the attendant regulations.

Section 2 of the Indian Act defines "“Indian moneys”" as "“""all moneyscollected, received or held by Her Majesty for the use and benefit of Indians or bands""”". In other words, these are monies held in trustby the Crown for the First Nations. Sections 61-69 of the Indian Act relate to management of these moneys, which fall into twocategories, capital moneys and revenue moneys (s. 63).

The de facto set-up under the Indian Act is that the government collects, holds,and manages all Indian moneys, with the Minister making/authorizing expenditures, sometimes requiring consent of the First Nationcouncil and sometimes not (ss. 64-68). [46] In Montana Band of Indians v Canada (Minister of Indian and Northern Affairs), [1989] 1 FCR 143 at para 26, Jerome A.C.J.stated "“By a complex series of historical and constitutional developments, it happens that funds are held in trust for the bands by thefederal government.

In the context of that fiduciary relationship, financial information passes between the parties.” " [47] Second, while the Privacy Act permits sharing of personal information held by government institutions with the Attorney Generalfor use in legal proceedings involving the Crown in right of Canada, it does not follow that this information automatically loses allprotection.

Sections 7 and 8 of the Privacy Act reflect Parliament’s attempt to balance competing interests: the privacy interest ofindividuals with respect to personal information on the one hand, and a variety of interests including competing personal interests of therespective individuals, as well as interests largely of a public nature, on the other. This balancing is similar, though clearly not identical,to that found at s. 241 of the Income Tax Act [ITA] (see Slattery (Trustee of) v Slattery, (SCC), [1993] 3 SCR 430 atp 443-44 [Slattery]).

Sub-section 241(3) of the ITA sets out exceptions to the ITA’s confidentiality provisions, and includes an exceptionpermitting disclosure of taxpayer information "“in respect of…any legal proceedings relating to the administration or enforcement of”"various Acts of Parliament. The Supreme Court has interpreted this exception as permitting disclosure of taxpayer information "“to theextent necessary for the effective administration and enforcement”" of the relevant statues (Slattery at 443-444, per Iacobucci J).

InBarreiro v Minister of National Revenue, 2008 FC 850 at para 17, Justice Phelan, in considering a requested confidentiality orderregarding taxpayer information in the hands of the Minister and the implication of s. 241(3), stated, "“Litigation, particularly at thisstage, does not justify the Minister in disclosing taxpayer information simply because there is litigation (nor is a taxpayer to be treated asif in a cocoon).”"

[48] In my view, a similar reading of s. 8(

d) of the Privacy Act is appropriate: while personal information may be shared with theAttorney General for use in legal proceedings, it does not follow that the Attorney General may disclose personal information simplybecause there is litigation. While the Attorney General is entitled to access and use of personal information where it is necessary toadvance its position in legal proceedings, this does not close the door to a contextual analysis as to whether a confidentiality order shouldbe granted where the Attorney General makes use of personal financial information in litigation.

I find it relevant to consider whetherthe information targeted by the confidentiality order is needed by the Attorney General to make full argument relating to a question theCourt will have to answer. As explained further below in these reasons, the information targeted by the confidentiality order is not soneeded. [49] Third, and related to the above considerations, Canada authorized the witnesses’ access to and collection of information from theseven First Nations trust accounts. It is Canada that filed the documents in question through its witnesses Eric Kirzner, Laurence Boothand Matthew LaCompte.

The targeted Exhibits are, in the main, trust accounts: Exhibit 79, Tab 17: Georgina Island Interest Account, 1983-2009, as appears with Report of Eric Kirzner and Laurence Booth Exhibit 410, Appendix 2, Tab 2: Accounts Transcriptions – Beausoleil/Christian Island: Updated Interest Trust Account Table from1922-23 to 2012-13 Exhibit 410, Appendix 6, Tab 2: Accounts Transcriptions – Rama: Updated Interest Trust Account Table from 1922-23 to 2012-13 Exhibit No. 421: Beausoleil Trust Accounts 1983-2013 Exhibit No. 423: Georgina Island Trust Accounts 1983-2013 Exhibit No. 425: Rama Trust Accounts 1983-2013 Exhibit No. 426: Scugog Island Trust Accounts 1983-2013 Exhibit No. 431: Georgina Island typed ledger 1957-58 Exhibit No. 432: Curve Lake typed ledger 1966-67 Exhibit No. 434: Printout from INAC Trust Fund Management system – Georgina Island 1994-95, Pages 1, 177-203 In addition, parts of Exhibit 410, Appendix 4, Tab 2 are almost identical to parts of Exhibit 79, Tab 17 and I choose to also include thisdocument in the collection under review. [50] Before calling Matthew LaCompte, Counsel for Canada explained that all counsel for the parties canvassed the issue that therewere a number of line items, both in transcriptions and in trust account statements, which identify persons by name.

All parties hadagreed that there had to be a way to treat this information in a manner that protected the privacy of those individuals. They agreed that, inthe course of direct and cross-examination, they would identify the line items by date and amount without using names, and would laterseek the Court’s assistance to ensure the privacy of those individuals could be protected. [51] Clearly, the personal financial information in the enumerated exhibits is derived from First Nations trust accounts.

I should thinkthat Canada, having assumed statutory control over Indian monies and in maintaining First Nations trust accounts, is in a position of afiduciary and has responsibility to keep personal financial information confidential except as it is obligated to be publicly accountable orif disclosure is required to advance a position in litigation. [52] Fourth, the names of persons in the trust account records are names of individuals who are either First Nations members or personswho engaged in financial transactions with the First Nations.

Neither are parties to this lawsuit. [53] Each First Nation Plaintiff is described in the style of cause as "“[the First Nation] and [the Chief of the First Nation] on his or herown behalf and on behalf of the members of [the First Nation]”". This reflects the collective nature of a First Nation claim. [54] In Olthius, Kleer, Townshend LLP’s Aboriginal Law Handbook, 4th Edition (Toronto, ON: Carswell, Thomson Reuters, 2012) at p.32, the nature of Aboriginal and treaty rights is explained in the following manner: "“Aboriginal and treaty rights are collective rightsbelonging to a community or people as a whole.

This means that Aboriginal individuals may enjoy the benefits of these rights, such ashunting or fishing, but that the rights belong to the community.”" The authors cite Pasco v Canadian National Railway (1989), (sub nom.Oregon Jack Creek Indian Band v Canadian National Railway Co.) [1990] 2 CNLR More recently, in Canadian National Railway vBrant, (ON SC), 96 O.R. (3d) 734, [2009] 4 CNLR 47 at para 50, Justice Strathy of the Ontario Superior Courtstated that Aboriginal and treaty rights "“are held by Aboriginal people in common and they cannot be asserted by individual members ofthe community”" (emphasis added). [55] Moreover, not all named individuals are First Nations members.

The trial evidence allows me to infer there are other namedindividuals who are third parties who engaged in financial transactions, mostly lot lease payments, with the First Nations. The latter areclearly not litigants. [56] There is one further contextual consideration, which is that this motion is being heard in the context of a s. 35 claim.

In MikisewCree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 1, Justice Binnie wrote the following: The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples andnon-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takesplace in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created bythe indifference of some government officials to aboriginal people’s concerns, and the lack of respect inherent in that

indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies. [57] The First Nations affidavit evidence is that the First Nations have always maintained the confidentiality of trust accounts and ofindividual band pay lists. The affidavit of Chief Larocca asserts specific harm that would occur through making such information public,including the fact that dignity of individual members of the First Nations could be harmed if personal information on financial assistancereceived by them is made public. ii.

Necessity [58] Taking into consideration the above contextual factors, I find that the interests at stake in the requested confidentiality order meetthe necessity requirement of the Dagenais/Mentuck/Sierra Club test. The interests at stake are more than merely personal privacyinterests.

There is a public interest in the public’s ability to rely on Canada to maintain the confidentiality and privacy of personalinformation kept in government documents, especially where that information is in the government’s control through mandatorystatutory requirements to provide such information. [59] Additionally, there is a public interest in ensuring that confidentiality of information shared in the context of a fiduciary relationshipis not lightly interfered with.

There is a further public interest in the public’s confidence that the government’s relationship with FirstNations peoples is in accord with the notions of reconciliation reflected in s. 35 of the Constitution Act, 1982 and not with a continuationof the past colonial attitude of overbearing government control and indifference to First Nations’ concerns.

To borrow the words ofMcLachlin J (as she then was), reconciliation is "“a goal of fundamental importance”" (R. v Van der Peet, (SCC),[1996] 2 SCR 507 at para 310, who wrote a dissenting opinion, but whose statement here was in accordance with the opinion of themajority). [60] The affidavit evidence and application of "“reason and logic”" (Bragg at para 16; see also para 15) establish serious risk of harm, toindividual First Nations members as well as the First Nations collectives, and to the above-described public interests, should the personalinformation contained in the First Nations trust account records be treated as public. iii.

Proportionality [61] As the requested order passes stage one of the Dagenais/Mentuck/Sierra Club test, it must now be considered whether the salutaryeffects of the order outweigh its deleterious effects.

This involves undertaking a contextual analysis of the impact of the requested orderon the open court principle and freedom of expression: "“Although as a general principle, the importance of open courts cannot beoverstated, it is necessary to examine, in the context of this case, the particular deleterious effects on freedom of expression that theconfidentiality order would have”" (Sierra Club at para 74, emphasis in original). [62] This motion for a confidentiality order was made in the context of a multi-year trial in which over 600 exhibits (not pages) havebeen filed, with many of the exhibits in turn containing hundreds to thousands of supporting documents.

The requested redactions pertainto individual names contained within only a handful of documents filed for the limited purpose of addressing calculation of equitabledamages. [63] In Whitefish Lake, Laskin J.A. wrote the following, at para 117, about the type of evidence needed to assess equitable compensationfor breach of fiduciary duty in an "“improvident”" sale by the Crown on behalf of Whitefish Lake: What is needed is evidence either from the Whitefish trust account records or elsewhere showing Whitefish’s annualspending patterns over the period.

For example, annually, how much of the interest in the interest account did it spend andon what? Annually, how much interest remained in the interest account and was it reinvested? Annually, was interest paidon the interest account, and if not, why not? Annually, how much money did Whitefish spend out of the capital account andon what? It seems to me that the answers to these, and no doubt other related questions, will assist in fixing an appropriateaward of equitable compensation.

There has been no suggestion made by any party that the trust account records are not an appropriate piece of evidence, or that theyshould be kept confidential in their entirety. What is sought by the First Nations is that names of individuals be removed from the publicrecord.

The above quote from Whitefish makes it clear that the details about to whom specifically money has been disbursed is not ofrelevance to the issue this Court must pronounce on, i.e. calculation of equitable compensation, except to the extent that this informationinforms categorization of a given disbursement. [64] In this instance, the names of individuals associated with personal financial information in the First Nations trust accounts may benecessary in the underlying documents to allow parties to verify proposed categorizations of the financial information.

Thecategorization is in turn relevant to proposed equitable damages calculations. The underlying documents, however, are not the subject ofthe requested confidentiality motion. [65] The important public interests in protection of privacy which would be furthered by the granting of a confidentiality order in thecontext of this motion outweigh any deleterious effect of the order.

The order requested by the First Nations is carefully tailored to targetthe minimum amount of information necessary to achieve the goal of protection of privacy and prevention of harm by limiting theredaction to the individual names from records dating from 1957 to present day. The rationale behind the specified time period is toprotect only the privacy interests of members likely to be alive today and who would therefore be most directly affected by publication oftheir personal financial information.

The requested order does not seek redaction of the financial information necessary to conduct ananalysis of equitable remedies, and thus does not cloud the transparency of the judicial decision-making process. [66] Furthermore, the Supreme Court has described as "“minimal”" the infringement on the open court principle in instances where thenames of sexual assault complainants are kept confidential (Bragg at para 28, quoting from Canadian Newspapers Co. v Canada(Attorney General), (SCC), [1988] 2 SCR 122 at 133).

The infringement caused by keeping confidential the names ofindividuals in trust account records, where this information is not required by the Court to answer a question before it, is likewise

minimal. The Supreme Court has referred to " “the relative insignificance of knowing a party’s identity” " ( Bragg at para 28 ); surely knowing the identity of someone who is not a party is of even less significance. D. Notice to the Media [ 67 ] I am satisfied the Settlement Agreement always was a confidential settlement agreement and its terms are covered by settlement privilege. As such it never had been agreed to be in the public domain. [ 68 ] I also am satisfied the names of individuals derived from the First Nations trust account records are names of persons who are not parties per se to this action.

The names of such persons are not information directly relevant to the issue of equitable compensation damages. [ 69 ] Due to the limited and minimal infringement on the open court principle, I did not consider it necessary to order that the media be given notice of the motion. VI. Conclusion [ 70 ] I conclude that Exhibit 302, the Coldwater-Narrows Settlement Agreement, satisfies the test for a confidentiality order for sealing.

In addition, I conclude the specific settlement terms awarded under the Settlement Agreement disclosed in the transcript evidence of the Rama First Nation witness, Dan Shilling, on August 28, 2015 should also be redacted from the transcript record. [ 71 ] I agree with the First Nations that there is both a " “reasonable expectation and a significant public interest for individuals to be able to rely on their governments to keep their personal financial information, maintained in trust accounts, government databases or other documentation, confidential and not share that information with the public” " . [ 72 ] Furthermore, the privacy interest at play is not that of a single person who is a private litigant in this case, but rather many individuals whose information is recorded in these First Nations trust accounts where those individuals are not personal litigants in this action. [ 73 ] Not only is there an important public interest at stake in how government treats personal information in its possession, there is also a general public interest at stake in the treatment of confidential personal information shared in the context of a fiduciary relationship.

There is also an over-arching public interest in promoting reconciliation. [ 74 ] The affidavits, reason, and logic establish serious risk of harm to these interests should the targeted private personal information be treated as public. An order to have this information redacted would thus meet the necessity criterion.

As the impact on the open court principle is minimal, the order would also meet the proportionality criterion. [ 75 ] I conclude there should be a sealing order for the Coldwater-Narrows Settlement Agreement and redaction of the settlement terms in the transcript of the community witness’ testimony given during cross-examination of August 15, 2015. [ 76 ] I conclude the names of individual persons in the enumerated Exhibits, identified at paragraph 49 of these Reasons, for the period 1957-2017 should be redacted.

I also conclude, since the First Nations have made no request for redactions in the underlying documents, that no redaction of those documents is necessary. [ 77 ] I do not consider the First Nations’ motion for confidentiality sufficiently engages the public interest so as to require notice to the media. However, not having the benefit of full argument on the question of notice, I will leave it open to any interested party to seek review of this Order within 14 days of its issuance. VII.

Costs [ 78 ] Since Canada will have to assume the task of providing a redacted copy of the Exhibits, I make no order for costs other than to direct costs will be in the cause. The First Nations will similarly provide a redacted copy of its Motion Record Exhibits. ORDER IN T-195-92 THIS COURT ORDERS that: 1 . The sealing of the Coldwater-Narrows Settlement Agreement and redaction of specific terms in the transcripts will be done by the Court Registry. 2 .

The redaction of the names in the enumerated Exhibits on the record will be done by Canada which will provide the Court with a redacted copy of the Exhibits, to replace the existing Exhibits. The First Nations will provide a redacted copy of the enumerated Exhibits for the Motion Record. The respective original trial and motion record will be sealed by the Court Registry and retained on the Court file. 3 . Any sufficiently interested third party may apply for leave to revisit this Order within 14 days of its issuance .

The Order will take interim effect on issuance and, should no leave be sought and granted, will take permanent effect after 14 days. 4 . Costs will be in the cause.

"Leonard S. Mandamin" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-195-92 STYLE OF CAUSE: ALDERVILLE INDIAN BAND ET AL v HER MAJESTY THE QUEEN AND HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO PLACE OF HEARING: Ontario, Ontario DATE OF HEARING: May 16, 2017 ORDER AND REASONS: MANDAMIN J. DATED: JUNE 28, 2017 APPEARANCES : Mr. Peter Hutchins Ms. Robin Campbell Ms. Leslie Ross Ms. Kieran Gibbs For The Plaintiffs Mr. Owen Young Ms. Anusha Aruliah For The Defendant Mr. David Feliciant Ms. Jacqueline L.

Wall For The Third PartY SOLICITORS OF RECORD : Hutchins Legal LLP Barristers and Solicitors Montréal, Quebec For The Plaintiffs Nathalie G. Drouin Deputy Attorney General of Canada Toronto, Ontario For The Defendant

Ministry of the Attorney General Deputy Attorney General of Canada Toronto, Ontario For The Third PartY