2022 NLSC 22, 2022 NLSC 22

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION In Bankruptcy and Insolvency Citation : Roman Catholic Episcopal Corporation of St. John's (Re) , 2022 NLSC 22 Date : February 15, 2022 Docket : 20220124092 In The Matter of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 , as amended (the “ BIA ”); And In The Matter of the Notice of Intention to Make a Proposal of the Roman Catholic Episcopal Corporation of St. John’s Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: January 28, 2022

Summary: John Doe (G.E.B. # 26) applied for three orders: (1) appointing the law firms of Gowling WLG (Canada) LLP and Budden & Associates as Representative Counsel in these proceedings; (2) appointing himself and two others as Representative Claimants in these proceedings; and (3) approving Deloitte Restructuring Inc. as Financial Advisor to the claimants. The Court granted all three orders, finding that, with the assistance of Representative Counsel and Representative Claimants, the proceedings will move more smoothly and effectively.

As to the Financial Advisor, matters are structurally and financially complex, and Deloitte has experience from past engagements that will enable it to assist the claimants in advancing their causes. Moreover, the orders are balanced and fair to all involved in the process, including most particularly, the claimants and the Corporation. Appearances: Clifton P. Prophet, Geoffrey E. Budden, Thomas Gertner, Paul A. Kennedy and Jennifer Helleur Appearing on behalf of the Applicant, John Doe (G.E.B. #26) and other anonymous claimants/creditors of the Corporation

Geoffrey L. Spencer Appearing on behalf of the Roman CatholicEpiscopal Corporation of St. John’s (the“Corporation”)James Foran Appearing on behalf of Deloitte Restructuring Inc.,the proposed Financial Advisor to the anonymousclaimants/creditors of the CorporationMaurice Chiasson, Q.C., Joseph J.Thorne and George Kinsman Appearing on behalf of Ernst & Young Inc., theproposed Trustee of the CorporationJoe Fiorante, Q.C., Grant B. Moffatt,Robert W. Buckingham, Henry G.Mugford, Andrew J. Martin andAndrew J.

Conway Appearing on behalf of other anonymousclaimants/creditors of the Corporation Authorities Cited: CASES CONSIDERED: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2018 NLSC 60, rev’d2020 NLCA 27, leave to appeal refused [2020] S.C.C.A. No. 309, 2021 CarswellNfld 12; Kelly v. J.J. Lacey Insurance Ltd. (Trustee of),(1997), (NL SC), 154 Nfld. & P.E.I.R. 1, 479 A.P.R. 1 (Nfld.

S.C.(T.D.)); Urbancorp Toronto Management Inc.,(Re), 2016 ONSC 5426; Canwest Publishing Inc. / Publications Canwest Inc., Re, 2010 ONSC 1328; Christian Brothers of Ireland inCanada, Re (1998), (ON SC), 37 O.R. (3d) 367, 77 A.C.W.S. (3d) 902 (Ct. J. (Gen. Div.)); Canwest Publishing Inc./ Publications Canwest Inc., Re, 2010 ONSC 222; Quadriga Fintech Solutions Corp. (Re), 2019 NSSC 65 STATUTES CONSIDERED: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3; Companies’ Creditors Arrangement Act, R.S.C.1985, c. C-36 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Handrigan J.: INTRODUCTION [1] On March 16, 2018, this Court dismissed a claim of damages by four claimants against the Roman Catholic EpiscopalCorporation of St. John’s (the “Corporation”) for abuse by Christian Brothers while they lived at Mount Cashel Orphanage in St. John’sin the late 1940s and 1950s: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2018 NLSC 60. Theclaimants appealed and our Court of Appeal set the dismissal aside on July 28, 2020: John Doe (G.E.B. #25) v. The Roman CatholicEpiscopal Corporation of St. John’s, 2020 NLCA 27.

Ultimately, the Supreme Court of Canada dismissed the Corporation’s applicationfor leave to appeal on January 14, 2021: Roman Catholic Episcopal Corporation of St. John’s v. Doe, [2020] S.C.C.A. No. 309, 2021CarswellNfld 12. [2] Since then, the four claimants have negotiated with the Corporation to advance their claims, but they are not the only claimantsseeking damages for abuse at the Orphanage. More than one hundred others are also looking for redress and it is possible, even likely,that more will present. Just now, there are five St.

John’s law firms representing most of those claimants (“Claimants’ Counsel”), butsome claimants have no individual counsel. [3] When the Supreme Court of Canada dismissed the Corporation’s application for leave to appeal, the Corporation retainedErnest & Young Inc. (the “Trustee”) to develop a process for it to meet its obligations to its creditors, who are mostly the claimants.

Bycorrespondence between Claimants’ Counsel and the Corporation in February 2021, the claimants agreed to forbear executing theirjudgments to allow the Corporation and the Trustee to develop a framework to recover funds from the assets of the Corporation to paytheir damages. [4] On December 16, 2021, Claimants’ Counsel formally notified the Corporation, for which the Agreement provided, that theForbearance Agreement would end in three days, following which the claimants would enforce their judgments. On December 30, 2021,the Corporation filed a Notice of Intention under

section 50.4 (1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”). TheCorporation had thirty days from that date to present a proposal to the claimants to satisfy their claims. I extended that time by forty-fivedays on January 20, 2022, so that it expires on March 6, 2022, unless it is extended further. [5] Meanwhile, on January 25, 2022, John Doe (G.E.B. #26) applied for three orders: (1) one appointing Gowling WLG (Canada)LLP and Budden & Associates as representative counsel for all claimants (“Representative Counsel”); (2) another appointing three ofthem, himself and two others as representatives of (

i) former residents of Mount Cashel Orphanage in St. John’s who suffered abuseduring their time in residence there; and (ii) all other persons who suffered abuse in this Province by clergy or lay religious orders for

whom the Corporation is responsible in law (“Representative Claimants”); and (3) one other, approving Deloitte Restructuring Inc. asfinancial advisor to the claimants (“Financial Advisor”). [6] I heard this application on January 28, 2022 and reserved my decision until now. The Issues [7] This application raises issues: 1. Should Gowling WLG (Canada) LLP and Budden & Associates be appointed as Representative Counsel? 2. Should three of the claimants be appointed as Representative Claimants? and 3. Should the appointment of Deloitte Restructuring Inc. as Financial Advisor to the claimants be approved?

The Law Statute & Regulation [8] John Doe (G.E.B. #26) applies under Rule 7.11 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D, andsection 183(1) of the BIA. The Rule provides, as is relevant here: 7.11.

(1) Where numerous persons have the same interest in a proceeding…, the proceeding may be begun, and, unless the Courtotherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. ….

(3) An order given in a proceeding under this rule is binding on all persons represented in the proceeding as parties, but the Courtmay (

a) make it binding on any person not a party to the proceeding; and (

b) exempt any person represented as a party on the proceeding from any liability under an order in the proceeding. [9] Section 183(1) of the BIA provides, again as is relevant here: 183

(1) The following courts are invested with such jurisdiction at law and in equity as will enable them to exercise original, auxiliaryand ancillary jurisdiction in bankruptcy and in other proceedings authorized by this Act during their respective terms, as they are now, ormay be hereafter, held, and in vacation and in chambers: …. (

g) in the Province of Newfoundland and Labrador, the Trial Division of the Supreme Court. Case Law [10] In Kelly v. J.J. Lacey Insurance Ltd. (Trustee of), (1997), (NL SC), 154 Nfld. & P.E.I.R. 1, 479 A.P.R. 1(Nfld. S.C.(T.D.)), Orsborn J. referred to Rule 7.11(1) and noted that it “… permit[ted] the institution of a representative proceeding”(paragraph 24).

He also noted that “[t]he rule is short”; and “… gives no guidance on the factors to be considered when faced with anapplication not to allow the representative aspect of the proceeding to continue” (paragraph 25). [11] Orsborn J. then reviewed Canadian and English case law on similar rules, observing that “[t]here has been little considerationof the Newfoundland rule” (paragraph 26).

Orsborn J. concluded at paragraph 43: From my review of the authorities, I conclude that, for numerous persons to have the same interest in a proceeding, the right asserted bythe plaintiff - both as to its nature and as to the factual and legal circumstances giving rise to the right - must be the same as the rightsasserted on behalf of those represented by the plaintiff, or must be so substantially similar as to permit the conclusion that adjudication ofthe issue as between the plaintiff and defendant renders it res judicata on all rights arising out of the same set of circumstances andenjoyed by all members of the class.

Further, those whom the plaintiff purports to represent - the "numerous persons" - must be readilydefinable. As well, the same interest criterion includes the requirement that, if the plaintiff is successful, all those represented becomeentitled to similar relief, although the relief may differ as to quantum between members of the class. [12] It is widely accepted that the Superior Courts in Canada, of which this Court is one, have jurisdiction under

section 11 of the

Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C-36 (“ CCAA ”), to appoint representative counsel and parties; and that the same discretion is available to those courts under section 183(1) of the BIA .

Section 11 of the CCAA provides: 11.

Despite anything in the Bankruptcy and Insolvency Act …, if an application is made under this Act in respect of a debtor company, the court, on the application of any person interested in the matter, may, subject to the restrictions set out in this Act, on notice to any other person or without notice as it may see fit, make any order that it considers appropriate in the circumstances. [ 13 ] In Urbancorp Toronto Management Inc., (Re) , 2016 ONSC 5426 , in an endorsement to a motion for relief, Newbould J. set out the “legal framework” for appointing representative counsel under the CCAA .

He noted at paragraph 10: The authority to appoint representative counsel in CCAA proceedings is undoubted under

section 11 of the CCAA and rules 10.01 and 12.07 of the rules of practice in Ontario….

I agree with Justice Wilton-Siegel in Re Kitchener Frame Limited , July 7, 2011 unreported, that there is no reason why the same should not pertain to a proposal under the BIA . [ 14 ] From that I find that I have jurisdiction under section 183(1) of the BIA , to deal with John Doe (G.E.B. #26)’s application to appoint Representative Counsel and Representative Claimants in these proceedings. [ 15 ] In the same endorsement, Newbould J. in Urbancorp also discussed the “… factors that have been considered by courts in granting these orders…” (paragraph 11).

Referring to Pepall J.’s decision in Canwest Publishing Inc. / Publications Canwest Inc., Re , 2010 ONSC 1328 , he listed the following: • the vulnerability and resources of the group sought to be represented; • any benefit to the companies under CCAA protection; • any social benefit to be derived from representation of the group; • the facilitation of the administration of the proceedings and efficiency; • the avoidance of a multiplicity of legal retainers; • the balance of convenience and whether it is fair and just, including to the creditors of the Estate; • whether representative counsel has already been appointed for those who have similar interests to the group seeking representation and who is also prepared to act for the group seeking the order; and • the position of other stakeholders and the Monitor. [ 16 ] This list, not surprisingly, has readily emerged as the “CanWest Publishing Factors” and it is just as readily applied when dealing with applications as John Doe (G.E.B. #26) has brought here. [ 17 ] This is the law I will apply to the application.

I turn now to analyze the issues I stated above, beginning with the background to them. Analysis Background [ 18 ] There are two groups of persons who are or may be claimants against the Corporation: former residents of Mount Cashel Orphanage who were abused while they lived there; and other persons who may have been abused anywhere in this Province by clergy or members of lay religious orders for whom the Corporation is responsible.

I have not heard of any claimants yet that may be in the second group, although it is possible that some may present. [ 19 ] John Doe (G.E.B. #26) asks me to order that the Corporation publish a “Notice to Claimants” in the Telegram , a daily newspaper distributed within the Province, advising potential claimants that I have appointed Representative Counsel for all claimants “…to take all steps desirable or necessary in the overall best interests of the Claimants” (Schedule “A” to the Interlocutory Application to appoint Representative Counsel).

The same notice informs its recipients that “IF YOU DO NOT WISH TO BE REPESENTED by Representative Counsel and the Claimant Representatives, you must … provide an Opt-Out Notice” (Schedule “A” to the Interlocutory Application, (capitalization in original)).

The proposed Notice will be directed to the two groups of potential claimants I referred to in the preceding paragraph, so it is possible that other claimants will come forward if they see the Notice and that they may even respond because of the local notoriety these proceedings have attracted. [ 20 ] Currently, there are five local law firms who represent claimants: Budden & Associates (70); Bob Buckingham Law (16); Stack & Associates PLC Inc. (11); Morris Martin Moore (7); and Rogers Rogers Moyse (5), for a total of 109.

When counsel appeared on this application, they noted the number of claimants they represent but some also stated their numbers as approximations. So, the number of actual claimants who may be represented by Representative Counsel or the Representative Claimants is still fluid.

The number who currently have present representation will exceed one hundred, but I may not be able to put an upper limit on the final number of claimants for some time. [ 21 ] John Doe (G.E.B. #26) brings this application to appoint Gowling WLG (Canada) LLP and Budden & Associates to be Representative Counsel in these proceedings; and he asks to be appointed, together with two other claimants as the Representative Claimants. The others will be identified as John Doe #2 and John Doe #3. Geoffrey E.

Budden of Budden & Associates is primarily involved on behalf of his firm, which is associated with Gowlings through Clifton P. Prophet. Budden & Associates represents John Doe (G.E.B. #26), Bob Buckingham Law represents John Doe #2 and Morris Martin Moore represents John Doe #3.

[ 22 ] In his application, John Doe (G.E.B. #26) also asks for an order to approve Deloitte Restructuring Inc. as financial advisor to the claimants; that Deloitte be paid “reasonable fees and disbursements by the … [Corporation] from the proceeds realized from the Property”; that Deloitte recover its professional fees and disbursements, “… up to an aggregate maximum amount of $100,000 …” from the Administrative Charge previously created by Order of this Court on January 20, 2022; and finally that the Administrative Charge be increased “… to the maximum aggregate amount of $400,000”. (All quotations in this paragraph come from Paragraph 13 of the Proposed Order submitted with the Interlocutory Application). [ 23 ] This is the background to the issues I stated above.

I turn now to discuss those issues, starting with the request to appoint Representative Counsel. Discussion Representative Counsel [ 24 ] The “CanWest Publishing Factors”, of which there are eight, although they can overlap somewhat, are generally considered by courts dealing with applications to appoint Representative Counsel. As I will do now. • The vulnerability and resources of the group sought to be represented [ 25 ] John Doe (G.E.B. #26) filed an affidavit with his Interlocutory Application.

He is now 81 years old, and he lived in Mount Cashel Orphanage from 1948 until 1955, or from when he was 7 to 14 years old. He notes that he has been actively involved with this litigation for the “… past twenty-two years” (paragraph 4) and knows well most of the claimants, about whom he says, with great empathy (paragraph 10): … [M]any of the members of the claimant group are aged and in failing health. Some have died. Although the abuse we suffered many years ago occurred in Newfoundland, I am aware that affected men now live in various different parts of this country and some live abroad.

For them all to participate as individuals in this proceeding would be very difficult and would challenge in some cases their failing strength. [ 26 ] In the Memorandum of Fact and Law that Mr. Budden submitted on behalf of John Doe (G.E.B. #26), he notes that the claimants have a “… deep distrust of the … [Corporation], given its past denial of any liability for the abuse that they suffered” (paragraph 22 (

a) of the Memorandum). • Any benefit to the companies under CCAA / BIA protection [ 27 ] The Corporation has undertaken the complex and intense work of compiling detailed lists of its assets and valuing them, as it prepares to settle with the claimants. The process will take time during which the two groups must maintain an ongoing dialogue. The Corporation cannot communicate directly with the claimants.

Many likely would not care to do so, given their history of association; and others, perhaps many, would lack the skill and sophistication to be engaged in those discussions. [ 28 ] As well, the disparate number of claimants, clearly exceeding one hundred, would be a complex interface for the Corporation that would surely hamper the timeliness and efficacy of the undertaking.

Representative Counsel will simplify the contact between the Corporation and the claimants during that work, enabling it to get done and delivered, both effectively and efficiently. • Any social benefit to be derived from representation of the group [ 29 ] I note the long history of this litigation. John Doe (G.E.B. #26) said that he has been involved with it for twenty-two years. The pallor of the tragedy that underpins the litigation has hovered over this community for decades and has occupied various levels of notoriety during that time.

The claimants have waited patiently for the process to resolve to be compensated for the abuse they suffered as children. Taking that burden from them by finishing this work is reason enough to complete it as efficiently and effectively as possible. But it also reflects more broadly, and positively, on this society as it delivers justice and recompense to them for their losses.

Competent counsel representing them is critically important to delivering those results. • The facilitation of the administration of the proceedings and efficiency [ 30 ] There is a risk that the proceedings will languish and get mired in procedural minutiae if the Corporation must deal with a hundred or more claimants, some without counsel. It would be less so if it must deal with only five law firms, but even then, with counsel taking instructions from one hundred or more clients, procedural complexities may well occur. Mr. Budden has been carrying this litigation for almost twenty-five years and Mr.

Prophet has a strong background in bankruptcy and insolvency proceedings. [ 31 ] In his affidavit to support the Interlocutory Application at paragraph 3, John Doe (G.E.B. #26) spoke of his long association with Mr. Budden: … I was at all times [during the 1999 litigation] kept informed as to the status of the action and of the related actions by similarly- situated claimants by means of regular communication with my counsel, Geoffrey E. Budden … … More particularly, I would meet with Mr.

Budden and/or his colleagues; we communicated by telephone and email; and I received regular, updating memos (which often included Court decisions and other documents).

[32] John Doe (G.E.B. #26) also holds Mr. Budden in high regard: “I know from my experience that Budden & Associates and itsprincipal, Geoff Budden, have experience in matters involving abuse by clergy and members of lay orders at Mount Cashel andelsewhere” (Affidavit, paragraph 9). [33] Mr. Budden and Clifton Prophet of Gowlings were involved in winding up the Christian Brothers of Ireland in Canada, Inc.before the Ontario Superior Court of Justice from 2001-2005. That winding-up process was also precipitated by litigation that came outof the abuse by the Brothers of the residents of Mount Cashel Orphanage.

As Blair J. stated in the reasons he filed in Christian Brothers of Ireland in Canada, Re (1998), (ON SC),37 O.R. (3d) 367, 77 A.C.W.S. (3d) 902 (Ct. J. (Gen. Div.)) at paragraphs 54-56: 54 Of the 89 individual claims received by the Liquidator, 86 relate to former residents of Mount Cashel; 1 also arises inNewfoundland, but not in connection with Mount Cashel; and 2 claims have been commenced in British Columbia alleging sexual abuseat the hands of Brothers at St. Louis College in Victoria.

There are no claims arising in connection with either Vancouver College or St.Thomas More Collegiate. 55 The approximate value of the claims allowed by the Liquidator is $31 million, not including 15 claims which have not specified aparticular amount. The total claims are estimated at around $36 million. 56 It is this situation — as I mentioned at the outset of these Reasons — which has led to the winding-up of The Christian Brothers ofIreland in Canada. [34] In the Memorandum of Fact and Law, which Mr. Budden filed to support the Interlocutory Application, he noted that “Gowlingand its lead counsel Mr.

Prophet consistently act as counsel for various stakeholders in insolvency proceedings across Canada”(paragraph 23(a)). [35] I am satisfied that Mr. Budden and Mr. Prophet have the knowledge of this file and the experience with this genre of litigation,as well as a genuine interest in resolving it, to move it forward with impetus and effectively. • The avoidance of a multiplicity of legal retainers [36] Representative Counsel for all claimants who present in this matter will provide a single point of contact between them and theCorporation.

This will lessen the time that consultations between the Corporation and the claimants will take, it will reduce the logisticalchallenges broader contact would require, and it will expedite communication with the claimants to obtain their consent and approvals asrequired. • The balance of convenience and whether it is fair and just, including to the creditors of the Estate [37] Henry (Harry) Mugford of Stack & Associates appears on behalf of 11 claimants and opposes the appointment of bothRepresentative Counsel and Representative Claimants. Mr.

Mugford is concerned, amongst other things, about whether his clients’claims will receive the detailed consideration in these proceedings that they require. He notes that some of his clients’ profiles are quitedistinct from John Doe (G.E.B. #26) who he says is a “high functioning survivor” and that they their claims for compensation go wellbeyond general damages. He is skeptical whether the process will allow them to present their claims fulsomely. [38] Mr. Prophet noted the “opt-out” provision that is contained in the proposed order. It provides: 10.

Any individual Claimant who does not wish to be represented by Representative Counsel and the Claimant Representatives in theseProposal Proceedings shall, within 30 days of the date of the Notice Letter [to be published in the Evening Telegram], notify theProposal Trustee and the Representative Counsel in writing that he or she is opting out of representation by Representative Counsel andthe Claimant Representatives.

Upon delivery of such a notice by a Claimant (the “Opt-Out Notice”), that Claimant shall not be boundby the actions of Representative Counsel and the Claimant Representatives and shall represent themselves or be represented by anycounsel that he or she retains at his or her own expense. [Bold in Original.] [39] Mr. Mugford acknowledges the “opt-out” provision, but he feels that it does not fully address his concerns about the processthat will follow if the order is granted.

He prefers to remove the “opt-out” provision and replace it with a proviso that a claimant whodoes not agree with the actions of Representative Counsel or the Representative Claimants has leave to apply to Court for directions. [40] I agree with Mr. Prophet’s comments about the efficacy of the “opt-out” provision for any claimant who does not want toparticipate in the representative proceedings. I find that there is balance and proportionality in the order and overall that it is just to all.

Iam reminded of what Pepall J. said about insolvency proceedings in Canwest Publishing Inc. / Publications Canwest Inc., Re, 2010ONSC 222, when she granted a stay of proceedings despite opposition from creditors: “… [T]he order requested may contain someshortcomings; it may not be perfect. That said, insolvency proceedings typically involve what is feasible, not what is flawless”(paragraph 5). [41] There are other features of the order that appropriately balance the interests of all who are involved in these proceedings,including the claimants and the Corporation in particular:

• Nothing in the order affects the relationships that already exist between Claimants and counsel, whether they be Representative Counsel or Third-Party Counsel. • Representative Counsel will not look to the property of the Corporation for compensation for their services or to settle their accounts with Claimants they already represent; and • While fees and disbursements for the Financial Advisor will be added to the Administrative Charge, the Charge will be capped at $400,000, allowing for an increase of $100,000 on that account but limiting the fees to a fixed amount and containing the impact of the Charge on the property available to be distributed to the Claimants. [ 42 ] Overall, I find that the order proposed here fulfils the two “primary rationales” of representative proceedings that Wood J. articulated in Quadriga Fintech Solutions Corp. (Re) , 2019 NSSC 65 , at paragraph 9 : The first is to provide effective communication with stakeholders and ensure that their interests are brought to the attention of the Court and other CCAA participants.

The second is to bring increased efficiency and cost effectiveness to the proceeding as a whole. This latter objective can be attainted (sic) by streamlining notification to stakeholders through their representatives and eliminating the need for multiple counsel to be retained by individual stakeholders to represent their interests…. [ 43 ] I understand the concern that Mr.

Mugford expresses for his clients, but I am confident that their claims will be suitably addressed through representative proceedings. • Whether representative counsel has already been appointed for those who have similar interests to the group seeking representation and who is also prepared to act for the group seeking the order [ 44 ] No other representative counsel has been appointed in these proceedings. • The position of other stakeholders and the Monitor [ 45 ] Except for Mr.

Mugford on behalf of his 11 claimants, all other counsel, the Corporation, and the Trustee agree with appointing Representative Counsel. Representative Claimants [ 46 ] John Doe (G.E.B. #26) filed an affidavit in support of his Interlocutory Application. He is, as I noted earlier, 81 years old, he lives in St. John’s, NL, and he started proceedings against the Corporation on December 29, 1999.

He has been involved in the process since then and saw the liability issue to a conclusion before the Supreme Court of Canada on January 14, 2021. [ 47 ] John Doe (G.E.B. #26) offered some background information in his affidavit by which I can judge his suitability: • He holds a Master of Education Degree, as well as other academic qualifications; • He has attended most of the court proceedings that took place on his claim over the past twenty-two years; • He has a common interest with the other claimants; • He has a good working rapport with Mr.

Budden; • He knows many of the claimants personally and has maintained contact with them over the years; • He can communicate with those claimants and apprise them of developments; • He firmly believes in the utility of representative proceedings as this “… will assist the RCEC SJ and its advisors by allowing them to predominantly deal on certain common issues with one set of counsel and advisors. This should make the process quicker and less expensive” (paragraph 11 of his Affidavit). [ 48 ] Counsel propose that two other claimants join with John Doe (G.E.B. #26) as Representative Claimants.

He refers to them as John Doe #2 and John Doe #3. Each has separate individual counsel in that, as I noted earlier, John Doe #2 is represented by Bob Buckingham Law and John Doe #3 is represented by Morris Martin Moore. [ 49 ] Based on John Doe (G.E.B. #26)’s antecedents, as he stated them in his affidavit and from Faour J.’s discussion of him in John Doe (G.E.B. #25), 2018 NLSC 60 , when he assessed the damages that he would have awarded him if he had found the Corporation liable, I am satisfied that John Doe (G.E.B. #26) is well-suited to the representative role.

I did not receive affidavits from John Doe #2 and John Doe #3 as I did from John Doe (G.E.B. #26), so I have no basis to judge their suitability as Representative Claimants. However, if the parties agree that they may serve in this representative capacity, I accept their choice. Financial Advisor [ 50 ] In his affidavit in support of the Interlocutory Application, John Doe (G.E.B. #26) stresses the importance of retaining “… independent financial and consulting advice” for the claimants. He endorses Deloitte Restructuring Inc. for that purpose based on his review of Exhibits “A” and “B” to his affidavit.

The former is correspondence from Deloitte consenting to act as Financial Advisor if I order it. [ 51 ] The latter is a statement from Deloitte setting out for my consideration some of its relevant experience in this Province and in Ontario. Of note are roles that Deloitte played in the preparation and presentation of proposals to claimants against the Roman Catholic Diocese of St. George’s in western Newfoundland for sexual and physical abuse caused by officials of that Diocese. In those proceedings

“it acted as Proposal Trustee of RCSG” under the guidance of this Court. In Ontario, it acted as the Liquidator of the Christian Brothers of Ireland in Canada, for the abuse which happened at Mount Cashel Orphanage here in this Province. [ 52 ] I believe that this background will serve Deloitte Restructuring Inc. here and ultimately will benefit the claimants, the Corporation, and all others with a stake in these proceedings.

Summary and Disposition [ 53 ] John Doe (G.E.B. #26) applied for three orders: (1) appointing the law firms of Gowling WLG (Canada) LLP and Budden & Associates as Representative Counsel in these proceedings; (2) appointing himself and two others as Representative Claimants in these proceedings; and (3) approving Deloitte Restructuring Inc. as Financial Advisor to the Claimants. [ 54 ] The Court granted all three orders, finding that, with the assistance of Representative Counsel and Representative Claimants, the proceedings will move more smoothly and effectively.

As to the Financial Advisor, matters are structurally and financially complex and Deloitte has experience from past engagements that will enable it to assist the claimants in advancing their causes. Moreover, the orders are balanced and fair to all involved in the process, including most importantly, the claimants and the Corporation. Order [ 55 ] John Doe (G.E.B. #26) submitted a draft order with his application. Mr. Prophet reviewed the proposed order in detail in his oral submissions on the application, and I have done the same.

I accept it as being appropriate to dispose of this matter; and so, it will issue. _____________________________ Garrett A. Handrigan Justice