Fontaine et al. v. Canada (Attorney Date:, 2014 MBCA 93

Citation: Fontaine et al. v. Canada (Attorney Date: 20141009 General) et al., 2014 MBCA 93 Docket: AI 13-30-08093 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : FRED KELLY ) ) (Plaintiff) Respondent ) ) - and - ) J. L. Brooks and ) G. I. Soonarane THE ATTORNEY GENERAL OF CANADA ) for the Appellant ) (Defendant) Appellant ) ) K. E. Mahoney and - and - ) M. W. Mulholland ) for the Respondent LES OBLATS DE MARIE IMMACULÉ

E) F. Kelly DU MANITOBA ) ) (Defendant) Respondent ) No appearance ) for the Respondent - and - ) Les Oblats de Marie ) Immaculée du LARRY PHILIP FONTAINE in his ) Manitoba personal capacity and in his capacity as ) the Executor of the estate of Agnes Mary ) Fontaine, deceased, et al. ) Appeal heard: ) April 23, 2014 (Plaintiffs) ) ) - and - ) Judgment delivered: ) October 9, 2014 THE PRESBYTERIAN CHURCH IN ) CANADA et al. ) ) (Defendants) ) ) CAMERON J.A.

Introduction [ 1 ] This is an appeal by the Attorney General of Canada (Canada) from an order providing direction made by the supervising judge pursuant to the Indian Residential Schools Settlement Agreement (the Agreement).

Broadly stated, the issue is whether Fred Kelly (the respondent), a person with a claim resulting from physical or sexual abuse suffered while attending an Indian residential school (residential school) that exceeds the maximum amount that can be ordered by an adjudicator, fully and finally exits the Independent Assessment Process (the IAP) of the Agreement by choosing to access the court process in order to pursue the full amount of his claim as provided for in the Agreement. [ 2 ] Applying the basic principles of contractual

interpretation, including a review of the Agreement as a whole, the factual matrix in which it was concluded and the specific wording of the provision in question, I conclude that the respondent does not fully and finally exit the IAP and is still entitled to all the benefits it confers despite the fact that he has been granted access to the courts

to determine the discrete issue of the damages for actual income loss. Overview of the Agreement [3] For over 100 years, the Government of Canada, in pursuit of its then policy to assimilate Aboriginal people into thedominant culture, participated in the development and administration of residential schools. Most of these schools were run inconjunction with various church entities, which were responsible for the day-to-day operation of the schools.

The system involved theforcible removal of Aboriginal children from their homes and placement and education in the residential schools. [4] Aside from forcible removal from the family and community, there was a concerted effort to undermine and indeedabolish the languages, spiritual and cultural traditions and way of life of the students. In addition, many students suffered inadequateliving conditions including lack of food, clothing and shelter.

Numerous students suffered serious emotional, physical and sexual abuse. [5] In the 1990s, former residential school students began suing, individually and by way of class action, Canada and thevarious church entities. They sought compensation for the harm that they suffered at the residential schools. One of the goals of theAgreement, in part, was the expeditious resolution of all ongoing litigation related to residential schools, since many students who hadattended residential schools had already passed away and others were quite elderly. See Baxter v.

Canada (Attorney General) (2006), (ON SC), 83 O.R. (3d) 481 at paras. 14, 38. [6] As a result of extensive negotiations, a Canada-wide Agreement was proposed. It involved obtaining, on the consentof the parties, approval orders of a single class action from courts across the country. In Manitoba, the approval decision was authoredby the supervising judge in Semple et al. v. Canada (Attorney General) et al., 2006 MBQB 285, 213 Man.R. (2d) 220.

The resultantorder (the Approval Order) encompasses the Agreement and a number of schedules. [7] The Approval Order provided a deadline for those who wished to opt out of the class action. Those who did not optout by the deadline were deemed to be included in the release against the defendants provided by the Agreement.

The Approval Orderprovided that all class members “fully, finally and forever” released the defendants “from any and all actions.” [8] The Approval Order also provided that “this Court shall supervise the implementation of the Agreement and thisjudgment and, without limiting the generality of the foregoing, may issue such orders as are necessary to implement and enforce theprovisions of the Agreement and this judgment.” Further, it allowed for the parties to apply to the court for direction concerning theimplementation, administration or amendment of the Agreement or implementation of the Approval Order. [9] The Agreement, in part, contains a general compensatory payment applicable to all individuals who attended aresidential school known as the Common Experience Payment (CEP).

In addition to the CEP, provision is made for individuals toadvance claims, known as continuing claims about which more will be written, as a result of serious physical or sexual abuse or otherwrongful acts suffered at the residential schools. These claims are dealt with on an individual basis through (the IAP). [10] The issue in this case involves the IAP and the

interpretation of how that process works in a situation where the claimexceeds the monetary limit that can be granted by an adjudicator. A more comprehensive examination of the IAP will help explain theissue. The IAP [11] The IAP, established in

Schedule D of the Agreement, is the process to be used with respect to continuing claims. Continuing claims arise from a limited number of torts defined in

Part I of

Schedule D, namely:

i) sexual and physical assaults committed by adult employees of Government, a church entity or other adults lawfully on thepremises; ii) physical or sexual assaults committed by one student against another in defined circumstances; and, iii) any other wrongful acts committed by adult employees of the Government or church entity or other adults lawfully on thepremises (other wrongful acts). These are the only claims that can be advanced pursuant to the IAP. Any other action that a claimant might have is subject to the release. [12] The process to establish a continuing claim is different than standard litigation.

It employs an inquisitorial process thatis presided over by an adjudicator chosen by a selection board comprised of a representative each from former students, counsel for theclaimants, church entities and Canada. Adjudicators are selected on the basis of 16 criteria including possession of a law degree,knowledge of, and sensitivity to, Aboriginal culture and history, and knowledge of, and sensitivity to, sexual and physical abuse issues.

While it is presumed that claimants are represented by legal counsel, only the adjudicator may directly question claimants. [13] Aside from the process, there are many benefits included in the IAP which would not be available in a normal civilaction. For example, claimants are eligible for a guaranteed contribution toward their legal costs and disbursements associated withparticipation in the process.

Claimants are also eligible to have costs for support persons to travel to the hearing, counselling services forthe hearing process, if necessary, cultural ceremonies, a comfortable setting for the hearing wherein the claimant has the choice oflocation, a guarantee of privacy and confidentiality with respect to the information disclosed and, access to a roster of experts to eliminatethe prospect of competing expert reports.

The Agreement also allows for those who are over 70 years of age or of failing health, as is therespondent in this proceeding, to have priority in the hearing process. [14] The IAP rules require claimants to establish compensable proven acts, consequential harms, aggravating factors,consequential loss of opportunity and actual income loss. Points are assigned for the various categories and a point-to-dollar conversionis included, except for actual income loss. For actual income loss, financial awards are to be determined using the “legal analyses and

amounts awarded in court decisions for like matters.” [ 15 ] Pursuant to the IAP, claimants may choose to claim consequential opportunity loss and/or actual income loss caused by the abuse alleged. Where a claimant seeks to claim actual income loss, the maximum for all losses is $430,000. Of the $430,000, a maximum of $250,000 is allowed for actual income loss. Where, as in this case, the applicant wishes to advance a claim of actual income loss in excess of the maximum, he must invoke the access to the courts provision found in the resolution process in

Schedule D. The Resolution Process [ 16 ] The

interpretation of the provision containing the resolution process for IAP claims in

Schedule D,

Part III(

b) is critical to the issue in this case. It states: III. ASSESSMENT PROCESS OUTLINE b. Resolution Processes within this IAP i. This IAP consists of a standard track, a complex issues track, and a provision for access to the courts for the resolution of certain of the continuing claims as set out below. ii. The complex issues track is for those continuing claims where the Claimant seeks an assessment of compensation for proven actual income losses resulting from continuing claims, and for other wrongful act claims (category [other wrongful act] on page 3). iii.

At the request of a Claimant, access to the courts to resolve a continuing claim may be granted by the Chief Adjudicator where he or she is satisfied that: • there is sufficient evidence that the claim is one where the actual income loss or consequential loss of opportunity may exceed the maximum permitted by this IAP ; • there is sufficient evidence that the Claimant suffered catastrophic physical harms such that compensation available through the courts may exceed the maximum permitted by this IAP; or, • in an other wrongful act claim, the evidence required to address the alleged harms is so complex and extensive that recourse to the courts is the more appropriate procedural approach.

In such cases, the Approval Orders will exempt the continuing claims from the deemed release, and thereafter the matter shall be addressed by the courts according to their own standards, rules and processes . [emphasis added] [ 17 ] In this decision, I will refer to

Part III(

b) of

Schedule D as the provision. [ 18 ] As earlier stated, at the heart of this appeal is the applicability of the IAP in circumstances such as the respondent’s, being that of a claimant who elects to access the court on the basis that his actual income loss exceeds the maximum amount that can be ordered by an adjudicator. Background and History of Proceedings [ 19 ] The respondent is a class member pursuant to the Agreement. He has received CEP compensation for having attended two residential schools as a child.

He is also a claimant under the IAP on the basis that he suffered physical and sexual abuse while attending a residential school. That is, he asserts a continuing claim which includes actual income loss. [ 20 ] Pursuant to the resolution process outlined earlier, the respondent sought the permission of the chief adjudicator to access the courts to resolve his continuing claim. At the contested hearing before the chief adjudicator, the issue was the quantum of the

respondent’s loss. [ 21 ] The chief adjudicator found that, on a preliminary basis, the respondent’s claim of actual income loss may exceed the maximum permitted by the IAP, and granted him access to the courts to resolve his claim. In reaching this conclusion, the chief adjudicator was careful to state that he was not conducting a full assessment of the evidence of the elements of the claim because, “[i]f this were required, presumably the request for access to the courts would be made after an IAP hearing which involved a full assessment of the evidence.” [ 22 ] He continued by stating: ….

Although “sufficient evidence” is required, one must be mindful that if access to the court is not granted and a claimant is required to pursue his or her claim in the IAP, a decision finding that actual income loss or loss of opportunity exceeded $250,000 (but was limited to that amount by the IAP) would visit an injustice on the claimant. It is such a consequence that was intended to be avoided by allowing access to the courts in certain situations. …. [ 23 ] After the decision of the chief adjudicator was rendered, the respondent filed a request for direction pursuant to the Agreement.

In that request, the respondent asked, among other things, whether his entire continuing claim or only his claim for actual income loss would be subject to the jurisdiction of the courts. Further, he sought a determination of whether the other provisions and benefits in the Agreement not related to the discrete issue of actual income loss would still apply to his continuing claim. Decision of the Supervising Judge [ 24 ] In his written decision, the supervising judge listed the issues before him as stated in the request for direction. Those issues were (at para. 14): .... (

a) Whether an actual income loss award forms a discrete and distinct head of damage available to a claimant within the compensation framework of the IAP; (

b) Whether under the compensation framework of the IAP, access to the courts is limited to the discrete and distinct determination of matters identified in [subs. (iii) of the provision], which in this case would be the calculation of actual loss of income exceeding $250,000; (

c) Whether a claimant, after obtaining access to the courts for the purpose of the calculation of his actual income award, is entitled to his rights to unrelated benefits granted by the IAP; (

d) Whether a claimant can claim the 15% legal fee contribution within the IAP notwithstanding his obtaining access to the courts for the purpose of the calculation of his actual loss of income award; (

e) Whether the choice-of-location provision of the IAP still applies to a claimant who has obtained access to the courts for the purpose of the calculation of his actual loss of income award; (

f) Whether prejudgment interest is included in the calculation of actual loss of income; (

g) Whether loss of pension benefits are included in the calculation of actual loss of income; and (

h) Whether in the event that the claimant is unable to meet the requirements of establishing an actual income loss award, he can bring an IAP claim under the standard track of the compensation framework. [ 25 ] The supervising judge commenced his analysis by noting that the Agreement was a contract that called for the

interpretation of an “order of judgment rather than a statutory enactment” (at para. 18). In discerning the intent of the parties, he stated that the Agreement was concluded “in order to provide a fair and comprehensive resolution to the tens of thousands of Indian Residential School survivors alive today, the vast majority of whom did not - and would likely not have managed to - seek compensation on an individual basis” (at para. 20).

He stated that the matter was an issue of access to justice and cited the Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change , by the Hon. Mr. Justice Thomas A. Cromwell (Ottawa: October 2013) < http://www.cfcjfcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf > (the Cromwell Report), as authority for the proposition that if a creative solution can be found which respects the Agreement, that solution should be preferred (see para. 21). Finally, he noted that, in the

preamble of the Agreement, “[t]he parties also cite their desire for reconciliation” (at para. 22). It was against this backdrop that he conducted his analysis. [ 26 ] The supervising judge stated that the court access provision in subs. (iii) of the provision lacked clarity as to the consequences of being granted access to the courts. He wrote (at para. 23): .... In this case, there is a lack of clarity as to the consequences of being granted access to the courts pursuant to the [subs. (iii) of the

provision] (p. 8). In particular, the provision reads in part: In such cases, the Approval Orders will exempt the continuing claims from the deemed release, and thereafter the matter shall be addressed by the courts according to their own standards, rules and processes. [emphasis added] [ 27 ] He stated that the question was whether the word “matter” meant the entire continuing claim or only the issue of actual income loss.

Based on the fact that actual income loss awards form a discrete head of damages in the IAP and that “[a]ctual income loss is assessed separate and apart from the points system otherwise used to calculate damages” (at para. 28), he found that it was conceivable that the “matter” could be referring to income loss only. [ 28 ] The supervising judge concluded that, on the basis of the context of the Agreement and the general intent of the parties, the word “matter” is intended to refer only to income calculation and not the entire continuing claim.

Further, he stated that the consequential bifurcation of proceedings allows for the expertise of both the adjudicators and the courts to be accessed. [ 29 ] In the supervising judge’s view, his

interpretation was consistent with that expressed by Veale J. in his settlement approval decision in Fontaine et al. v. Canada (Attorney General) , 2006 YKSC 63 , 35 C.P.C. (6th) 134 ( Fontaine 2006 ) , where he wrote (at para. 14): …. Actual income loss, which was not compensable previously, has been added with awards up to $250,000.

In very serious cases, the adjudicator can refer the income issue to court where there is no compensation ceiling. …. [ 30 ] Having decided that the respondent was granted access to the court only regarding the issue of income calculation, the supervising judge considered the application of the substantive benefits of the Agreement to the balance of the respondent’s claim on the basis that the language of the Agreement suggests that a claimant who has accessed the courts is still viewed as having a continuing claim within the IAP.

However, the supervising judge was clear that the benefits in the Agreement would not apply in the event of a “conflict with the court’s rules, standards and procedures in the assessment of his income loss claim” (at para. 36). In his view, part of the court’s standards mandated the application of the “but for” test in the court proceedings. [ 31 ] In the result, the supervising judge provided the following direction (at para. 51): .... (

a) It will be for the adjudicator to determine whether abuse occurred, and what compensation is owed pursuant to the regular compensation grid; (

b) Damages for actual income loss will be determined by the court in a process initiated by [the respondent] by way of originating Notice of Application, to be filed upon completion of (a); (

c) While deciding the issues raised in item (b), the court will also consider whether the parties intended to allow a claim for lost pension to be included in a court’s assessment of actual income loss; (

d) To the extent possible, deference should be extended to the adjudicator’s factual determinations; (

e) In making the determination as to damages for lost income, the court will employ a “but for” causation test; (

f) On determination of the issues referred to in (

b) and (c), the court shall refer the matter back to the adjudicator who shall then implement the IAP settlement. This includes awarding additional points for consequential loss of opportunity if appropriate, and providing the Releasees (as defined in the Settlement Agreement) with a release. A judgment will not be entered in the court records. Instead, the court’s determination of damages for lost income will be incorporated within the adjudicator’s decision in accordance with

Schedule ‘D’, Appendix XII, page 46; and (

g) The parties otherwise remain bound by the terms of the Settlement Agreement. [ 32 ] It is from the above direction that Canada appeals. The Issues [ 33 ] While Canada listed four grounds of appeal, it only addressed the three issues in oral and written argument, which I have summarized as:

1. The supervising judge erred in law in failing to consider the plain language of the provision and in his finding that it lacked clarity. 2. The supervising judge erred in applying the concept of access to justice as an interpretive principle. 3. The supervising judge erred in interpreting the provision in a manner that is unworkable and incompatible with and unsupported by the IAP.

The Positions of the Parties [ 34 ] While the positions of the parties are set out in more detail later, below is a general overview. [ 35 ] Canada’s position is that the plain and ordinary meaning of the word “matter” as it is used in the provision refers to the entire continuing claim as opposed to the computation of damages for actual income loss. Thus, it argues, it was an error to find the word to be ambiguous and interpret it in the manner done by the supervising judge. Next, Canada argues that the

interpretation of the provision was incompatible with and unsupported by the contract as a whole. Further, Canada maintains that the supervising judge erred by applying the concept of access to justice as an interpretive tool. Finally, Canada asserts that the application of the supervising judge’s decision is not procedurally supported by the Agreement and results in an absurdity. [ 36 ] The respondent maintains that the supervising judge did not err in interpreting the Agreement.

Rather, he asserts that the supervising judge interpreted the provision in the context of the entire Agreement and properly considered the factual matrix surrounding it. The respondent maintains that the supervising judge did not err in applying the concept of access to justice as an interpretive principle on the basis that it is one of the purposes of the Agreement.

Further, the respondent argues that to interpret the provision in a manner that results in his full and final release from the IAP would create an absurd result in that those who were the most harmed by the residential school experience would be left without the benefits afforded by the class action settlement of which they are class members. He maintains that the clear language of the Agreement shows that actual income loss is intended to be a discrete matter to be dealt with by the court as opposed to the entire continuing claim.

Analysis Standard of Review [ 37 ] The standard of review to be applied to contractual

interpretation is dependent on the nature of the question. In King v. Operating Engineers Training Institute of Manitoba Inc. , 2011 MBCA 80 , 270 Man.R. (2d) 63 , Steel J.A. stated (at para. 21): …. … [ E]rrors of law reviewable on a standard of correctness, in the area of contractual

interpretation, include the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor. .... [ 38 ] The

interpretation of a contract in the context of the factual matrix is a question of mixed fact and law. However, the palpable and overriding error standard will not apply if a question of law can be extricated from the factual considerations involved. The question is then treated as one of law and the standard is correctness. See King at paras. 25-26, and Hopkins v. Ventura Custom Homes Ltd., 2013 MBCA 67 at para. 66 , 294 Man.R. (2d) 168 . [ 39 ] The above approach to contractual

interpretation was most recently affirmed by the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp ., 2014 SCC 53 at paras. 42-55 . In that case, Rothstein J., writing for a unanimous court, stated that, while most cases of contractual

interpretation involve the application of mixed fact and law, extricable questions of law can be identified in such circumstances as are identified in King . [ 40 ] The parties agree, as do I, that both issues involve errors of law or extricable questions of law and are reviewable on the standard of correctness.

As was stated by Rothstein J. in Sattva , one of the purposes of drawing a distinction between questions of law and those of mixed fact and law “is to limit the intervention of appellate courts to cases where the results can be expected to have an impact beyond the parties to the particular dispute” (at para. 51). In this case, the Agreement has applicability to thousands of claimants across the country and as such, the manner in which it is interpreted has great precedential value, and brings certainty to others involved in similar disputes. See Sattva at paras. 51-53.

Issue 1: Did the supervising judge err in law in failing to consider the plain language of the provision and in his finding that it lacked clarity? [ 41 ] As earlier stated, the main issue is the supervising judge’s finding that the meaning of the word “matter” in the provision was unclear and his

interpretation that access to the courts was limited to the discrete matter of loss of actual income. For ease of reference, the portion of the provision under contention is reproduced below: In such cases, the Approval Orders [allowing the claimant to access the court] will exempt the continuing claims from the deemed release, and thereafter the matter shall be addressed by the courts according to their own standards, rules and processes. [emphasis added]

[42] On the face of it, the word “matter” could mean one of the discrete circumstances wherein the chief adjudicator maymake an approval order allowing the claimant to access the courts, or, it could mean that the whole cause of action that formed the basisof the continuing claim is to be addressed by the court process and is no longer governed by the IAP at all. While both parties urge thecourt to find that, on its plain and ordinary meaning, the word “matter” refers to the

interpretation it advances, in my view, the issue isnot so clear. Indeed, the mere fact that Veale J. in Fontaine 2006 assumed, albeit without analysis, that the term applied to income lossdemonstrates that, on the face of it, the issue merits more consideration. [43] The cardinal rule of contract

interpretation is that the court “should give effect to the intentions of parties as expressedin their written document” (Manulife Bank of Canada v. Conlin, (SCC), [1996] 3 S.C.R. 415 at para. 79). Inconsidering the intent of the parties, the contract should be construed as a whole (Scanlon v. Castlepoint Development Corp. (1992), (ON CA), 11 O.R. (3d) 744 at pp. 770-71 (C.A.), leave to appeal to the S.C.C. denied, [1993] S.C.C.A. No. 62 (QL)).

Further, even if no ambiguity is found, the court may consider the factual matrix or surrounding circumstances as of the time of thesigning of the contract (Sattva at paras. 46-48; King at paras. 69-70; and Moore (Geoffrey L.) Realty Inc. v. Manitoba Motor League,2003 MBCA 71 at para. 13, 173 Man.R. (2d) 300). [44] Ambiguity, such as was found by the supervising judge, essentially means that the word or phrase in question is“reasonably susceptible of more than one meaning” (Hi-Tech Group Inc. v. Sears Canada Inc. (2001), (ON CA), 52O.R. (3d) 97 at para. 18 (C.A.)).

Such a determination cannot be made until “the full text of the contract is considered, in light of thesurrounding circumstances at the time of its execution, if necessary” (Moore Realty at para. 25). [45] Thus, I will consider the provision in the context of the Agreement in its entirety and the surrounding circumstances todiscern the intent of the parties. The

Preamble to the Agreement [46] I start my analysis with the

preamble to the Agreement. It commences with an acknowledgement that Canada andcertain religious organizations operated the residential schools and that certain harms and abuses were committed against the childrenwho attended them (see para. A). It expresses the parties’ desire for a fair, comprehensive and lasting resolution of the legacy ofresidential schools (see para. B). Next, it expresses the parties’ desire for the promotion of healing, education, truth and reconciliation,and commemoration (see para. C). Also of import to this case is para.

G, which provides: The Parties, subject to the Approval Orders, agree to settle all pending individual actions relating to Indian Residential Schools upon theterms contained in this Agreement, save and except those actions brought by individuals who opt out of the Class Actions in the mannerset out in this Agreement, or who will be deemed to have opted out pursuant to

Article 1008 of The Code of Civil Procedure of Quebec. [47] The

preamble ends by stating that the Agreement is not to be construed as an admission of liability by any of thedefendants (see para. H). [48] In oral argument, Canada maintained that the supervising judge erred in considering the principles of reconciliation andresolution in reaching his decision. Specifically, it argued that, while those principles were key in reaching the Agreement and wererelevant to the approval decisions, they have no application in the

interpretation of the provision because it constitutes a complete exitfrom the IAP. I disagree. In my view, the

preamble constitutes part of the Agreement and is relevant to the

interpretation of it. [49] Contractual

preambles, often called recitals, “set out the background facts and purpose of an agreement.” Cynthia L.Elderkin & Julia S. Shin Doi, Behind and Beyond Boilerplate: Drafting Commercial Agreements, 3d ed. (Toronto: Thomson ReutersCanada Limited, 2011) at 25. [50] Generally there are two principles that govern the use of recitals in contractual

interpretation. First, where the operativeprovisions are clear and unambiguous, they prevail over the recitals where there is any inconsistency between the two. Second, wherethere is ambiguity in the operative provisions the recitals may be considered in the resolution of the ambiguity. See Dawes, Ex parte. Inre Moon (1886), 17 Q.B.D. 275 (C.A.); British Columbia Hydro and Power Authority v. Gregory Manufacturing Ltd., [1979] B.C.J. No.678 at para. 12 (QL) (C.A.) at para. 12; Co-Operative Trust Co. of Canada v. Receveur, Hansen, Paslowski and Mahon (1985), (SK CA), 40 Sask.R. 315 at para. 19 (C.A.). [51] I understand that, as noted by Geoff R. Hall in his text Canadian Contractual

Interpretation Law, 2d ed. (Markham: LexisNexis Canada, 2012), a shift in the way courts approach recitals seems to be developing. That is, some courts now simply considerthe recitals as part of the contract as a whole. However, as I later explain, I have found the provision in this case to be ambiguous and itis on that basis that I rely on the

preamble. Therefore, it is unnecessary for me to determine the extent to which the

preamble mightotherwise have been considered. Other Provisions in the Agreement [52] I start by noting that the word “matter” is not included in the

definitions

section of the Agreement. Further, a review ofthe Agreement in its entirety demonstrates that the word “matter” is used throughout with varying meanings. Thus, there is no consistentuse of the word “matter” that might assist in discerning its meaning in the provision. [53] Both parties referred to other provisions of the Agreement in argument. [54] In support of his argument that it is only the discrete issue of income loss that is the subject of a court access order, therespondent relied on other schedules of the Agreement. For example,

Schedule N identifies guiding principles that were to be used in the

negotiation of the Agreement: …. … [A]ccessible; victim-centered; confidentiality (if required by the former student); do no harm; health and safety of participants; representative; public/transparent; accountable; open and honourable process; comprehensive; inclusive, educational, holistic, just and fair; respectful; voluntary; flexible; and forward looking in terms of rebuilding and renewing Aboriginal relationships …. [ 55 ] Based on the above, the respondent submits that it cannot have been the intent of the drafters to exclude those who are the most harmed from the benefits of the IAP.

He points to the many significant hurdles he would face if he was required to commence a fresh action. [ 56 ] In response to the respondent’s concern regarding his inability to successfully pursue an action, Canada points to various provisions included as attachments to the Agreement which would provide some relief to the hurdles the respondent would have to face.

However, Canada admits that the respondent would still be subject to defences such as vicarious liability and many other difficulties in proving his claim. [ 57 ] In my view, while the reality is that the respondent would face many hurdles in proceeding with his claim from scratch, this is not necessarily indicative of the intention of the parties. The Language of the IAP [ 58 ] The respondent argues that, aside from the language of the provision itself, other provisions of the IAP support his

interpretation. For example, the

section just preceding the provision is

Schedule D,

Part III(

a) titled “Core Assumptions as to Legal and Compensation Standards.”

Part III(a)(

i) of that

schedule sets out the following assumption: All Eligible CEP Recipients will, by the terms of the Approval Orders, be deemed to have released the defendants for all claims arising from their [residential school] attendance or experience, subject to retaining the right to resolve within this IAP their continuing claims for [residential school] abuse. [emphasis added] [ 59 ] On one hand, the respondent argues that the words “resolve within this IAP” indicate that the continuing claim remains within the IAP, even in the event that access to the courts is provided. [ 60 ] On the other hand, Canada argues that the effect of such an

interpretation is to nullify the exemption found in the provision which exempts the “continuing claims” from the release and not just the monetary limit. To repeat, that portion of the provision states: In such cases [where court access is granted], the Approval Orders will exempt the continuing claims from the deemed release …. [ 61 ] In my view, the

interpretation urged by the respondent does not nullify the exemption from the release. The exemption need not apply to the entire continuing claim to be effective. Rather, there is nothing to prevent it from being applied only to the determination of actual income loss. Further, the wording of the exemption needs to be broad, especially when all three of the circumstances wherein a claimant may be granted access to the courts are considered.

This is especially true for the third circumstance where a claimant can apply for access to the courts in another wrongful act claim where the evidence required to address the alleged harms is so complex and extensive that recourse to the courts is the more appropriate procedural approach. In my view, it is preferable to adopt a flexible approach to the application of the exemption.

The Language of the Provision [ 62 ] The language of the provision itself is subject to two competing arguments. [ 63 ] The respondent argues that the heading of the provision, “Resolution Processes within this IAP,” indicates the intent for the parties to remain within the IAP for the resolution of their continuing claims.

Further, he argues that the description of the claims as continuing is consistent with the intent that the claim be dealt with pursuant to the IAP rather than by instituting an entirely new action. [ 64 ] It is the respondent’s position that the introductory description of what constitutes the IAP is found in subs. (

i) of the provision which, for the purpose of efficiency, I reproduce again. This IAP consists of a standard track, a complex issues track, and a provision for access to the courts for the resolution of certain of the

continuing claims …. [65] The respondent submits that the wording of the

section allows for two tracks and the access to courts provision is partof the complex issues track, which allows for court access to resolve any one of the three issues identified in subs. (iii) of the provision,reproduced again below: At the request of a Claimant, access to the courts to resolve a continuing claim may be granted by the Chief Adjudicator where he or sheis satisfied that: • there is sufficient evidence that the claim is one where the actual income loss or consequential loss of opportunity may exceed themaximum permitted by this IAP; • there is sufficient evidence that the Claimant suffered catastrophic physical harms such that compensation available through thecourts may exceed the maximum permitted by this IAP; or, • in an other wrongful act claim, the evidence required to address the alleged harms is so complex and extensive that recourse to thecourts is the more appropriate procedural approach. .... [66] Canada asserts that the three situations allowing for court access listed above support its argument that the word“matter” refers to the entire continuing claim.

Specifically, aside from loss of income, claimants can gain access to the courts where theyhave suffered catastrophic harm that exceeds the maximum limit or where the evidence to address the harm alleged is so complex andextensive that recourse to the courts is the more appropriate procedural approach.

Canada states that consideration of these twosituations demonstrates that the harm component of the continuing claim is indivisible from the monetary loss. [67] While I agree with Canada that the harm component overlaps with the damages suffered, I am not convinced that thatmeans that the entire continuing claim must be litigated in the usual fashion.

At the very least, the phrase “Resolution Processes withinthis IAP” calls into question the intent of the parties. [68] I am aware that the above phrase is merely a heading in the Agreement and that art. 1.02 of the Agreement specificallyprovides that “headings are for convenience of reference only and do not affect the construction or

interpretation of this Agreement.” However, the wording is virtually replicated in other provisions of the Agreement. For example, as earlier stated,

Schedule D,

Part III(a)“Core Assumptions as to Legal and Compensation Standards,” subs. (

i) provides for release of the defendants subject to the right to“resolve within this IAP their continuing claims.” The Factual Matrix [69] Having examined the relevant provisions of the Agreement and the provision in question, I turn to the surroundingcircumstances in existence at the time the Agreement was entered into. In Moore Realty, Hamilton J.A. explained the significance ofconsidering such circumstances (at para. 15): Surrounding circumstances are often important because, in the real world, the task of ascertaining contractual intention can be difficult aswords do not have immutable or absolute meanings.

Rather, words often take their meaning from a multitude of contextual factorsincluding the nature of the relationship created by the agreement and the purpose of the agreement. .... [70] She clarified (at para. 18): It is also important to remember that when determining the intention of the parties, it is in the objective sense of a reasonable person byreference to the surrounding circumstances at the time of the signing of the contract. See Reardon Smith Line Ltd. [[1976] 3 All E.R.570 (H.L.)], and MacMillan Bloedel Ltd. v.

British Columbia Hydro and Power Authority (1992), (BC CA), 19B.C.A.C. 215; 34 W.A.C. 215; 72 B.C.L.R. (2d) 273 (C.A.). [71] In addition to evidence of the objective intention of the parties, the factual matrix can also include evidence of thecommercial purpose of the contract, its aims and objectives and evidence of the nature or custom of the market or industry in which the

contract was executed. See King at para. 72. [72] In this case, the Agreement is the result of months of negotiations by experienced and knowledgeable counsel for allparties. Having said that, in my view, it is different than a typical commercial contract. Although I would not go so far as to find that itis a political agreement as was found by Perell J. in Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86, itmust be acknowledged that it is something more than the settlement of a tort-based class action.

It is directly aimed at remedying thesignificant social, emotional, and physical injustice created by the defendants that has left a multi-generational legacy of harm. [73] The Agreement came about in response to the thousands of actions and many class actions that had been filed againstthe defendants. There is no dispute that these actions would have taken many years to resolve in the civil court process despite analternative dispute resolution process that had been implemented by Canada. As was noted in Semple (at para. 7): …. One case took 16 years to wend its way to trial, appeal and the Supreme Court.

The trial lasted 60 days. Another claim by 26plaintiffs lasted six years from start to finish. The trial was conducted in three segments a total of 108 days. …. [74] Furthermore, the Agreement was negotiated against the backdrop of evidence that the potential class members wereelderly and dying at a rate of approximately 1,000 per year (see Baxter at para 46). [75] Having said that, the resolution of outstanding litigation was not the only goal. Other broad goals of the Agreementinclude the establishment of the Truth and Reconciliation Commission and funding for healing and commemoration.

In the big picture,the Agreement is a step toward reconciliation. Conclusion [76] After consideration of the Agreement as a whole and the factual matrix, I agree with the supervising judge that theprovision is unclear. It is ambiguous. That is, the term “matter” could be interpreted as encompassing the entire continuing claim oronly the discrete issue in this case of actual income loss. [77] When considering an ambiguous term, Estey J., writing for a majority of the Supreme Court of Canada in Consolidated-Bathhurst Export Ltd. v.

Mutual Boiler and Machinery Insurance Co., (SCC), [1980] 1 S.C.R. 888, provided thefollowing guidance (at pp. 901-2): Even apart from the doctrine of contra proferentem as it may be applied in the construction of contracts, the normal rules of constructionlead a court to search for an

interpretation which, from the whole of the contract, would appear to promote or advance the true intent ofthe parties at the time of entry into the contract. Consequently, literal meaning should not be applied where to do so would bring about anunrealistic result or a result which would not be contemplated in the commercial atmosphere in which the insurance was contracted.Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as theinterpretation which would promote the intention of the parties. Similarly, an

interpretation which defeats the intentions of the partiesand their objective in entering into the commercial transaction in the first place should be discarded in favour of an

interpretation of thepolicy which promotes a sensible commercial result. It is trite to observe that an

interpretation of an ambiguous contractual provisionwhich would render the endeavour on the part of the insured to obtain insurance protection nugatory, should be avoided. Said anotherway, the courts should be loath to support a construction which would either enable the insurer to pocket the premium without risk or theinsured to achieve a recovery which could neither be sensibly sought nor anticipated at the time of the contract. [emphasis added] [78] Thus, in accordance with Consolidated-Bathurst, the provision will be interpreted in a manner such that, of the twointerpretations advanced, the more reasonable construction that produces a fair result will be considered to be the

interpretation thatwould promote the intention of the parties. [79] In my view, fairest result and the one that evidences the intent of the parties is that the word “matter” as used in thephrase “the Approval Orders will exempt the continuing claims from the deemed release, and thereafter the matter shall be addressed bythe courts” refers, in this case, to the discrete matter of actual income loss and not the entire action or continuing claim. [80] To interpret the provision in such a manner is consistent with the Agreement as a whole and the factual matrix.

It isconsistent with the goal of dealing with all of the outstanding residential school claims in an inclusive, fair and efficient manner. [81] Reading the Agreement as a whole, the

preamble supports the

interpretation of the provision that I have adopted. Itspecifically states that the parties “desire a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools” (atpara. B). Perhaps even more important, such an

interpretation is consistent with the goal of the promotion of reconciliation. It is alsoconsistent with para. G of the

preamble which states that the parties “agree to settle all pending individual actions ... upon the termscontained in this Agreement, save and except those actions brought by individuals who opt out.” Referring an entire continuing claim tothe court process is not consistent with an agreement to settle.

[ 82 ] The

interpretation, I have found, is consistent with the entire Agreement in that

Schedule D treats actual income loss as a discrete issue, severable from damages based on consequential harms or consequential opportunity losses. As was pointed out by the respondent, in

Part I of

Schedule D, there are separate compensation points award grids for each of those categories. There is a grid allowing for conversion of compensation points to dollar values. There is no compensation points award grid for actual income loss.

Rather, the Agreement provides for the determination of proven actual income loss as follows: Proven Actual Income loss Where actual income losses are proven pursuant to the standards set within the complex issues track of this IAP, an adjudicator may make an award for the amount of such proven loss up to a maximum of $250,000 in addition to the amount determined pursuant to the above grid, provided that compensation within the grid is established without the allocation of points for consequential loss of opportunity.

The amount awarded for actual income loss shall be determined using the legal analyses and amounts awarded in court decisions for like matters. [ 83 ] Support for such an

interpretation can also be found in Appendix IX to

Schedule D entitled “Instructions for Adjudicators.” For the standard track, the instructions state: …. Actual income loss claims constitute a distinct basis for compensation within this IAP, and the standards for their assessment do not apply to consequential loss of opportunity claims.

The above is consistent with the fact that a claim for actual income loss cannot be made within the standard track. [ 84 ] Further, it is consistent with the language used in the IAP indicating that access to the courts is a resolution process within the IAP. [ 85 ] In my view, if accessing the courts pursuant to the provision meant that the entire IAP process no longer applied at all, that would have been clearly set out in the Agreement. Certainly, where the Agreement intends to deny access to its provisions, it clearly states so.

For example, paras. 12 and 15 of the Approval Order issued in Manitoba incorporate art. 4.06 of the Agreement, which provides (at subart. (i)): Approval Orders will be sought: (

i) ordering and declaring that notwithstanding

Section 4.06(c), (

d) and (f), a Class Member who on or after the fifth anniversary of the Implementation Date had never commenced an action other than a class action in relation to an Indian Residential School … may commence an action for any of the Continuing Claims within the jurisdiction of the court in which the action is commenced. For greater certainty, the rules, procedures and standards of the IAP are not applicable to such actions. [emphasis added] [ 86 ] Further, such an

interpretation is consistent with the circumstances surrounding the Agreement, the goal of resolving outstanding residential school claims in an expeditious manner and the goals of healing and reconciliation. [ 87 ] Finally, in accordance with Consolidated-Bathhurst , the result is sensible. That is, access to the courts is not used to deny the respondent the benefits of the IAP. However, the respondent must still meet all of the standards required to prove his continuing claim pursuant to the IAP and his actual income loss to the court.

This is a balanced response that respects the terms of the Agreement. [ 88 ] Therefore, in my view, the supervising judge did not err in finding that the provision lacked clarity and in adopting the

interpretation that he did. [ 89 ] I note that Canada pointed out that the application of the contra proferentem rule is specifically prohibited by art. 1.04 of the Agreement. Contra proferentem is a rule developed in the context of the

interpretation of insurance contracts and generally provides that, in the event that the “court is unable to resolve a contradiction or ambiguity in the terms of a contract, the language of the contract will be construed against its author” ( Scanlon at p. 771). To be clear, t he conclusion I have reached is not as a result of the application of the contra proferentem rule. Rather, as stated in Consolidated-Bathurst , it results from the normal rules of construction to

an

interpretation which promotes the “true intent of the parties at the time of entry into the contract” (at p. 901). [ 90 ] I would just add one further comment. In his decision giving direction, the supervising judge relied on the understanding of Veale J. in the settlement approval decision in Fontaine 2006 to bolster his conclusion that it is the income issue that is referred to the courts.

In my view, the comment that he relied on, reproduced earlier, was one that was made in the context of a different issue, without considered analysis, and I would not read as much into Veale J.’s words as did the supervising judge. Issue 2: Did the supervising judge err in applying the concept of access to justice as an interpretive principle? [ 91 ] I agree with Canada that the supervising judge should not have relied on the Cromwell Report to hold that “[i]f a creative solution can be found which respects the … Agreement and enhances access to justice, that solution should be preferred” (at para. 21).

This case involves the

interpretation of a contract and the intention of the parties at the time the contract was made. The Cromwell Report did not exist at the time the contract was entered into and played no

part in the Agreement. However, despite this error by the supervising judge, as is evidenced by the Agreement itself and the factual matrix, the concept of access to justice was clearly one of the goals of the Agreement. Therefore, in my view, nothing turns on this error. Issue 3: Did the supervising judge err in interpreting the provision in a manner that is unworkable and incompatible with and unsupported by the IAP? Positions of the Parties [ 92 ] Canada argues that the Approval Order made by the supervising judge creates a bifurcated process that is not procedurally supported by the IAP.

That is, when access to the courts is granted, the IAP does not speak to issues such as standards of causation, when expert evidence is adducible, how findings are to be reviewed and by whom. Canada relies on art. 18.06 of the Agreement, which provides that it constitutes the entire Agreement between the parties. It argues that had it been intended that a claimant who chose the court process could remain within the IAP and enjoy all of its benefits, the Agreement itself would have provided the appropriate process to be applied and provision for review.

It argues that to read in a bifurcated process such as was done by the supervising judge is contrary to art. 18.06. [ 93 ] Next, Canada maintains that to apply the review provisions currently existing in the IAP results in an absurdity which would allow an adjudicator the ability to review the court’s finding.

Additionally, Canada argues that the order by the supervising judge results in an absurdity insofar as it directs a judge to give deference to the findings of an adjudicator, contrary to s. 96 of the Constitution Act . [ 94 ] Finally, Canada argues that some evidence will be required to satisfy the “but for” test in the determination of income loss. Such evidence would overlap with that provided to the adjudicator and would be duplicative and could result in inconsistent findings. [ 95 ] The respondent argues that Canada is overcomplicating the issue.

It is his position that the supervising judge was correct when he ordered that the adjudicator would determine whether abuse occurred and what compensation is owed pursuant to the IAP. Damages for actual income loss would be determined by the court. After the determination of actual income loss by the trial judge, a judgment would not be entered.

Rather, the determination of the total amount of actual income loss would be referred back to the adjudicator, who would then incorporate it into his decision. [ 96 ] The respondent submits that as access to courts is simply part of the complex issues track, the provisions of the IAP continue to apply. Therefore, the final decision of the adjudicator incorporating the decision of the trial judge is subject to the review process outlined in

Schedule D,

Part I of the Agreement. That is, for complex issues track claims, both the claimant and the defendants can ask for review by the chief adjudicator or his designate on the basis of palpable and overriding error. Finally, relying on the decision of Fontaine et al. v.

Canada (Attorney General) et al. , 2012 ONCA 471 , 295 O.A.C. 127 ( Fontaine 2012 ) , the respondent asserts that the decision of the chief adjudicator is not reviewable by the courts short of a request for direction where it is alleged that the chief adjudicator’s decision reflects a failure to enforce conditions of the Agreement and the implementation orders. Analysis and Conclusion [ 97 ] Contrary to Canada’s argument that the IAP does not support the

interpretation of the provision that I have endorsed, I see no problem with the fact that the IAP does not speak to issues such as causation, and other standards to be applied by the courts.

In my view, those issues are dealt with by subs. (iii) of the provision wherein it states that “the matter shall be addressed by the courts according to their own standards, rules and processes.” This is also consistent with the supervising judge’s determination that the IAP applies except where it is inconsistent with the court’s standards, rules and processes. [ 98 ] The supervising judge’s order provided a direction that in the ensuing court proceeding, to the extent possible, deference should be applied to the decision of the adjudicator’s factual determinations.

However, contrary to Canada’s argument, it is not absurd for a court to give deference to factual findings made by a finder of fact. It must be remembered that the adjudicators are chosen on the basis of specialized criteria and have legal, cultural and historical expertise in the subject matter at hand. [ 99 ] While an adjudicator chosen pursuant to the criteria in the Agreement is not an administrative tribunal, in my view, a useful analogy can be drawn between factual determinations of an adjudicator and those of an administrative tribunal. That is, they are to be approached with deference.

In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 , Rothstein J., neatly summarized the concept as follows (at para. 1): Through the creation of administrative tribunals, legislatures confer decision-making authority on certain matters to decision makers who are assumed to have specialized expertise with the assigned subject matter. Courts owe deference to administrative decisions within the

area of decision-making authority conferred to such tribunals. …. [ 100 ] In Sattva Rothstein J. considered certain analogies between judicial review of administrative tribunal decisions and appeals of arbitration awards. He observed (at para. 105): Nevertheless, judicial review of administrative tribunal decisions and appeals of arbitration awards are analogous in some respects. Both involve a court reviewing the decision of a non-judicial decision-maker.

Additionally, as expertise is a factor in judicial review, it is a factor in commercial arbitrations: where parties choose their own decision-maker, it may be presumed that such decision-makers are chosen either based on their expertise in the area which is the subject of dispute or are otherwise qualified in a manner that is acceptable to the parties.

For these reasons, aspects of the Dunsmuir [2008 SCC 9 , [2008] 1 S.C.R. 190 ] framework are helpful in determining the appropriate standard of review to apply in the case of commercial arbitration awards. [emphasis added] [ 101 ] The Agreement has provided for specialized decision-makers with expertise in the assigned subject matter. Furthermore, not only is an adjudicator highly specialized; he or she will have had the benefit of hearing the evidence in a comfortable setting at a location chosen by the claimant with a support person and cultural ceremony, should the claimant so choose.

In my view, in light of the goals of access to justice, cultural respect and healing inherent in the Agreement, this is the preferable way for the provision of such evidence. It has the ability to provide insight in a manner not possible in the confines of a courtroom. Thus, it was not an error to provide that the adjudicator’s factual determinations are to be approached with deference “[t]o the extent possible” (at para. 51). [ 102 ] The supervising judge ordered that, in determining damages for actual loss of income, the court will employ the “but for” test. In my view, this direction was premature.

While I agree that the “but for” test is the test for causation, in Clements v. Clements , 2012 SCC 32 , [2012] 2 S.C.R. 181 , the Supreme Court of Canada recognized that, in exceptional cases, the “but for” test will not apply. In those instances, proof of factual causation can be replaced by proof of material contribution to the risk that gave rise to the injury. In explaining the law, McLachlin C.J.C. wrote on behalf of the majority (at para. 46): The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (

a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (

b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [ 103 ] In other words, the determination of the test to be applied is dependent on the facts alleged, the nature of harm claimed and the nature of the loss.

In this case, we know the claimant alleges that, as a result of the alcoholism he suffered which was grounded in the sexual and physical assaults to which he was subject while residing in residential schools, he was unable to maintain employment. In my view, a determination of the test to be applied is one which should be made by the judge conducting the hearing of the issue with full knowledge of all of the facts and their intricacies.

Therefore, I would not sustain this aspect of the order. [ 104 ] The trial judge also erred in his direction when he provided that after the court determined the two issues of actual income loss and whether the parties intended to allow a claim for lost pension to be included in a court’s assessment of actual income loss, a judgment would not be entered in the court records.

Such an order is contrary to the Agreement which, as I have earlier stated, provides that “the matter shall be addressed by the courts according to their own standards, rules and processes.” Failure to enter a judgment is not in accordance with the standards, rules and processes of the court. [ 105 ] The intent underlying the supervising judge’s order that a judgment would not be entered into the court record was directed to the issue of review of that decision. The objective being that the judgment, not being a court order, would not be appealable in the usual manner.

Rather, it would be reviewable within the terms of the Agreement. The issue of review of a decision made by the court after access has been granted pursuant to the provision is not directly before this court. That is, it is not part of the request for direction, but rather, a possible consequence of the direction. The issue of review only arises in the event that one of the parties is dissatisfied with the damages ordered by the court for actual income loss or the determination of the intent of the parties to allow a claim for pension loss in the assessment of the income loss claim.

It is unnecessary and premature to decide that issue in this proceeding. If and when the issue of review arises, it can be decided through the usual process. Thus, I would not uphold this aspect of the supervising judge’s order.

[ 106 ] Aside from the above two errors, I conclude that the supervising judge did not err in interpreting the provision in a manner that is unworkable and incompatible with and unsupported by the IAP. Decision [ 107 ] In light of all of the above, aside from his reliance on the Cromwell Report, the supervising judge did not err in his

interpretation of the Agreement. Except for the direction that the judge hearing the actual income loss claim employ the “but for” test, and the direction that a judgment made by a court pursuant to the provision not be entered in the court records, the supervising judge did not err in the resultant direction. [ 108 ] Therefore, I would allow the appeal only to remove the two directions that I have outlined above . In all other respects, I would dismiss the appeal. [ 109 ] The respondent asked for an opportunity to argue quantum of costs should he be successful in this appeal.

Pursuant to that request, both he and Canada may file written submissions. Included in the submissions the parties should address the issue of which jurisdiction’s laws the court should apply in reaching its conclusion. The parties are to contact the registrar for further direction. J.A. I agree: J.A. I agree: J.A.