JOAN JACK v. LOUAY ALGHOUL, 2020 FCA 180

Date: 20201023 Docket: A-340-19 Citation: 2020 FCA 180 Present: GLEASON J.A. BETWEEN: JOAN JACK AND LOUAY ALGHOUL Appellants and GARRY LESLIE MCLEAN, ROGER AUGUSTINE, ANGELA ELIZABETH SIMONE SAMPSON, MARAGARET ANNE SWAN and MARIETTE LUCILLE BUCKSHOT and HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE ATTORNEY GENERAL OF CANADA Respondents Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on October 23, 2020. REASONS FOR ORDER BY: GLEASON J.A. Date: 20201023 Docket: A-340-19 Citation: 2020 FCA 180 Present: GLEASON J.A.

BETWEEN: JOAN JACK AND LOUAY ALGHOUL Appellants and GARRY LESLIE MCLEAN, ROGER AUGUSTINE, ANGELA ELIZABETH SIMONE SAMPSON, MARAGARET ANNE SWAN and MARIETTE LUCILLE BUCKSHOT and HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE ATTORNEY GENERAL OF CANADA Respondents REASONS FOR ORDER GLEASON J.A. [ 1 ] The individual respondents, who were the representative plaintiffs in a class action before the Federal Court involving Indian Day School survivors, have brought a motion seeking an order permitting them to file additional evidence in this appeal and an order extending the time for filing their memorandum of fact and law. [ 2 ] The additional materials the individual respondents wish to put before this Court fall into three categories.

First, there are a number of items that were inadvertently omitted from or were incorrectly photocopied in the appeal book. Second, there are certain pieces of evidence that were before the Federal Court that the individual respondents say they only appreciated were relevant to the appeal once they reviewed the arguments set out in the appellants’ memorandum of fact and law. Finally, there are a number of items that were not

before the Federal Court that the individual respondents claim should be put before this Court to address arguments made by theappellants in their memorandum. The individual respondents assert that the items in the second and third categories should be consideredon appeal to avoid a miscarriage of justice. [3] The appellants agree to the proposed amendments to the appeal book to correct their errors in compiling it, but object to the requeststo admit the other categories of evidence.

Her Majesty the Queen, as represented by the Attorney General of Canada, takes no position inrespect of this motion. [4] As the appellants concur that they inadvertently made the errors in preparing the appeal book that the individual respondentshighlight, and as the appeal book as filed does not conform to the June 15, 2020 Order of this Court, issued by Near, J.A. to settle itscontents, the request to amend the appeal book to correct these errors is well-founded. However, Rule 343(5) of the Federal CourtsRules, SOR/98-106 provides that it is an appellant’s responsibility to prepare the appeal book.

Therefore, it is more appropriate that theappellants file a revised and corrected appeal book that conforms to this Court’s Order of June 15, 2020.

They should do so within30 days to avoid further delay. [5] To put the remaining issues into context, it is necessary to briefly review their factual background. [6] In the order under appeal, the Federal Court approved the settlement of and fees to be awarded to class counsel in a class actionbrought to compensate survivors of Indian Day Schools (2019 FC 1076; see also Reasons for approval of the settlement, 2019 FC 1075and for approval of fees payable to class counsel, 2019 FC 1077).

The appellants were proposed class counsel in a previous proposedclass action before the Manitoba Court of Queen’s Bench in respect of what appears to be the same or similar issues and class. Theysought leave to intervene in the settlement approval hearing of the class action before the Federal Court, and on May 9, 2019, that Courtdenied their motion. They appealed the denial of their motion to intervene to this Court.

In a brief Order issued June 15, 2020, this Courtdismissed their appeal for mootness. [7] Despite the denial of their intervention motion, the Federal Court permitted the appellants to appear during the settlement approvalhearing to make brief submissions regarding their request for compensation pursuant to an undertaking regarding compensation theyallege current class counsel gave to them when the appellants transferred their files to current class counsel. [8] In its reasons for judgment issued in connection with the order under appeal, the Federal Court found that the appellants’ request forcompensation should be pursued before the Manitoba courts.

In their appeal, the appellants contend that the Federal Court erred inreaching this conclusion and seek, among other things, compensation for the work they say they performed on behalf of class members. [9] The individual respondents assert that the materials in the second category that they wish to add to the appeal book (which werebefore the Federal Court) provide background and highlight the nature of some of the work undertaken by current class counsel, whichthey allege are relevant to the appellants’ request for compensation.

The materials in the third category include orders and reasons fororder of the Federal Court and of the Manitoba Court of Queen’s Bench as well as various exchanges between the appellants and classcounsel regarding the alleged undertaking. The individual respondents assert that the materials in the third category (which were notbefore the Federal Court) provide background and establish that the class counsel did not breach their undertaking to counsel for theappellants.

The appellants, in response, allege that the materials the individual respondents wish to add do not paint a full picture and saythat their claim for compensation would require much more fulsome evidence to be fairly adjudicated, despite their request for suchadjudication in their notice of appeal. [10] The principles governing the admission of fresh evidence on appeal were set out at paragraph 3 of Coady v.

Canada (RoyalMounted Police), 2019 FCA 102, which provides: The test governing such requests is well-established and requires that the party seeking to adduce fresh evidence establishthat the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bearson a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4)is such that, if believed, could reasonably have affected the result in the court below: Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759 at p. 775, (1979) 30 N.R. 181; May v.

Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809at para. 107. This test has been regularly applied by single judges of this Court when deciding motions seeking theadmission of new evidence on appeal: see Shire Canada Inc. v. Apotex Inc., 2011 FCA 10 at para. 17, 414 N.R. 270 (Shire);Brace v. Canada, 2014 FCA 92 at para. 11, 68 C.P.C. (7th) 81 (Brace). If the evidence fails to meet the foregoing criteria,the Court still possesses a residual discretion to admit the evidence on appeal.

However, such discretion should be exercisedsparingly and only in the “clearest of cases”, where the interests of justice so require: Shire at para. 18; Brace at para. 12 [11] The additional evidence in the second category cannot be considered as fresh as it was part of the record before the Federal Court.Thus, the sole issue for determination in respect of the request to add such evidence to the appeal book is whether the second category ofevidence is relevant to the issues on appeal.

While it appears to be of tangential relevance at best, without the benefit of the individualrespondents’ arguments, I am not prepared to dismiss this portion of the motion. Rather, I believe that determining the relevance of theevidence in the second category should be left to the panel hearing the appeal. Therefore, the individual respondents shall file a freshmotion, within 30 days, to be placed before the panel seized with the appeal, to add to the appeal book only the evidence in the secondcategory, namely, the affidavits of Dr. Baldwin and Ms.

Ford and Exhibits D and E to the affidavit of Jeremy Bouchard, swornSeptember 14, 2020. They may refer to such evidence in their memorandum of fact and law, which should be filed within 30 days of thedate of these Reasons.

It will be up to the panel seized with the appeal to determine the relevance of any arguments made in respect ofsuch evidence. [12] Turning to the third category, as noted, the individual respondents wish to add several court orders and reasons for order as well asexchanges of correspondence and other materials they say demonstrate that the appellants are not entitled to compensation from thesettlement funds. [13] The court orders and reasons are not evidence per se and may be included either in the joint book of authorities or in a compendium,as the appellants have chosen to do with other such orders and reasons.

There is no need to add them to the appeal book.

[ 14 ] The other items in this category are evidentiary in nature, but they fail to meet the test set out in Coady for two reasons. First, the majority of these items pre-date the hearing before the Federal Court and could have easily been adduced before that Court by the individual respondents. Second, and perhaps more importantly, such evidence is not relevant to this appeal. On appeal, this Court will be required to determine whether the Federal Court erred in declining to consider the appellants’ request for compensation, based on the materials that were before that Court.

I fail to see how consideration of whether class counsel breached their undertaking to the appellants is relevant to such determination as the Federal Court did not rule on whether there was a breach of the alleged undertaking. Thus, there is no basis to add these materials to the appeal book, and, contrary to what the individual respondents assert, it is not in the interests of justice to place irrelevant material before the Court. [ 15 ] The individual respondents’ motion will therefore be granted in part, in accordance with these Reasons.

As success is divided, no order will be made in respect of costs. “Mary J.L. Gleason” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-340-19 STYLE OF CAUSE: JOAN JACK AND LOUAY ALGHOUL v. GARRY LESLIE MCLEAN, et al. and HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE ATTORNEY GENERAL OF CANADA MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: GLEASON J.A. DATED: October 23, 2020 WRITTEN REPRESENTATIONS BY : Clint Docken, Q.C. Mathew Farrell For The Appellants Mary M. Thomson Robert Winogron Jeremy Bouchard Brian A. Crane, Q.C.

Guy Régimbald Joshua Shoemaker For The Respondents (GARRY LESLIE MCLEAN, et al.) Catharine Moore Travis Henderson Sarah-Dawn Norris Sarah Jane Howard For The Respondents (HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE ATTORNEY GENERAL OF CANADA) SOLICITORS OF RECORD : Guardian Law Group LLP Calgary, Alberta For The Appellants

Gowling WLG (Canada) LLP Ottawa, Ontario For The Respondents (GARRY LESLIE MCLEAN, et al.) Nathalie G. Drouin Deputy Attorney General of Canada For The Respondents (HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE ATTORNEY GENERAL OF CANADA)