Docket: CACV2157 Kenneth Sparvier, Dennis Smokeyday, Rhonda Buffalo, John Doe I, Jane Doe I, John Doe II, Jane Doe II, John Doe III, Jane Doe III, John Doe IV, Jane Doe IV, John Doe V, Jane Doe V, John Doe VI, Jane Doe VI, John Doe VII, Jane Doe VII, John Doe VIII, Jane Doe VIII, John Doe IX, Jane Doe IX, John Doe X, Jane Doe X, John Doe XI, Jane Doe XI, John Doe XII, Jane Doe XII, John Doe XIII, Jane Doe XIII, v. other John and Jane Does Individuals, 2012 SKCA 94

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 94 Date: 2012-10-19 Between: Docket: CACV2157 Kenneth Sparvier, Dennis Smokeyday, Rhonda Buffalo, John Doe I, Jane Doe I, John Doe II, Jane Doe II, John Doe III, Jane Doe III, John Doe IV, Jane Doe IV, John Doe V, Jane Doe V, John Doe VI, Jane Doe VI, John Doe VII, Jane Doe VII, John Doe VIII, Jane Doe VIII, John Doe IX, Jane Doe IX, John Doe X, Jane Doe X, John Doe XI, Jane Doe XI, John Doe XII, Jane Doe XII, John Doe XIII, Jane Doe XIII, and other John and Jane Does Individuals and Entities to be added Appellants (Plaintiffs) - and - Lac La Ronge Indian Band Respondent (Applicant) - and - Attorney General of Canada, et al Non-Parties (Defendants) Coram: Richards, Ottenbreit and Herauf JJ.A.

Counsel: E.F. Anthony Mer chant, Q.C. for the appellants Michael Swinwood for the respondent Dalal Mouallem for the Attorney General via telephone

Appeal: From: Q.B.G. 816 of 2005, J.C. of Regina Heard: September 24, 2012 Disposition: Allowed Written Reasons: October 19, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Richards J.A. I. Introduction [ 1 ] The Indian Residential Schools Settlement Agreement (“the Agreement”) resolved a number of class action proceedings that had been brought against Canada and various church-related entities with respect to the experiences of aboriginal children at residential schools.

It was negotiated and approved in 2006. [ 2 ] The settlement applies to students who attended the schools listed in schedules to the Agreement. There is also a procedure whereby persons or organizations may request that additional schools, and hence their former residents, be brought within the scope of the Agreement. Such requests are to be adjudicated by Canada on the basis of specified criteria. [ 3 ] The Timber Bay Children’s Home (“Timber Bay”), operated near Lac La Ronge, Saskatchewan.

It is not listed in the Agreement. [ 4 ] In 2008, the respondent Lac La Ronge Indian Band (“LLRIB”) asked to have Timber Bay added to the Agreement. The request was refused by Canada. LLRIB disputed that decision and, as contemplated by the Agreement, it then applied to a Queen’s Bench judge for a determination of the status of Timber Bay. [ 5 ] The judge made a preliminary order appointing LLRIB, for the purpose of the application, as the representative of the former residents of Timber Bay.

The issue in this appeal is the validity of the representation order. [ 6 ] I conclude, for the reasons set out below, that the order cannot stand. In my respectful view, it conflicts with the terms of the Agreement and, therefore, it should not have been made. II. BACKGROUND [ 7 ] The roots of this case are well-known. For many decades, Canada obliged aboriginal children to attend residential schools. Those schools were generally operated by church and religious organizations. The children involved were cut off from their families and cultures.

Many suffered various forms of abuse. [ 8 ] All of this led to a number of class actions being commenced on behalf of former residential school students against both Canada and church organizations. As indicated, those claims were settled by way of the Agreement. [ 9 ] In simplified terms, the Agreement contemplates that former residential school students may either opt out of the settlement or accept its terms and be bound by them.

Former residents who accept the settlement are entitled to a “common experience payment” based on the duration of their stay at a residential school and potentially an “independent assessment process” payment based on their individual experiences during their residential school stay. [ 10 ] The Agreement operates with respect to any person who attended the schools listed in Schedules E and F of the Agreement. It also sets out a procedure whereby its effect can be extended to the residents of additional schools.

This no doubt reflects the fact that all of the evidence concerning the residential school situation had not yet come to light in 2006. The relevant procedure is set out in

Article Twelve of the Agreement. [ 11 ]

Article Twelve provides that the initial request to add a school to the Agreement will be made to Canada. If, in light of specified criteria, Canada decides that the school should be included within the scope of the Agreement, it will be listed in

Schedule F. If Canada rejects the request, a court can be asked to determine the status of the school. In Saskatchewan, any such application is to be made to the Court of Queen’s Bench. [ 12 ]

Article Twelve lies at the heart of this appeal. It reads as follows: 12.01 Request to Add Institution

(1) Any person or organization (the “Requestor”) may request that an institution be added to

Schedule “F” , in accordance with the criteria set out in

Section 12.01(2) of this Agreement, by submitting the name of the institution and any relevant information in the Requestor’s possession to Canada ;

(2) The criteria for adding an institution to

Schedule “F” are:

a) The child was placed in a residence away from the family home by or under the authority of Canada for the purposes of education; and,

b) Canada was jointly or solely responsible for the operation of the residence and care of the children resident there.

(3) Indicators that Canada was jointly or solely responsible for the operation of the residence and care of children there include, but are not limited to, whether:

a) The institution was federally owned;

b) Canada stood as the parent to the child;

c) Canada was at least partially responsible for the administration of the institution;

d) Canada inspected or had a right to inspect the institution; or,

e) Canada did or did not stipulate the institution as an IRS.

(4) Within 60 days of receiving a request to add an institution to

Schedule “F”, Canada will research the proposed institution and determine whether it is an Indian Residential School as defined in this Agreement and will provide both the Requestor and the NAC with:

a) Canada’s decision on whether the institution is an Indian Residential School;

b) Written reasons for that decision; and

c) A list of materials upon which that decision was made; provided that Canada may ask the Requestor for an extension of time to complete the research.

(5) Should either the Requestor or the NAC dispute Canada’s decision to refuse to add a proposed institution, the Requestor may apply to the Appropriate Court, or the NAC may apply to the court of the province or territory where the Requestor resides for a determination .

(6) Where Canada adds an institution to

Schedule “F” under

Section 12.01(4), Canada may provide the Requestor with reasonable legal costs and disbursements. [emphasis added] [ 13 ] Many members of the LLRIB community attended Timber Bay. In light of

Article Twelve, LLRIB instructed its then counsel, Mr. Jake Tootoosis, to request that Timber Bay be added to

Schedule F. This was done by way of a submission presented in November of 2008. The request was rejected by Canada in February of 2009. [ 14 ] Following Mr. Tootoosis’s untimely death, LLRIB retained its current counsel for the purpose of pursuing an application to the Court of Queen’s Bench as provided by

Article 12.01(5) of the Agreement. LLRIB hopes, by way of the application, to persuade the Court that Timber Bay should be included in

Schedule F. [ 15 ] In the course of the run-up to the hearing of the application, we are told that the Queen’s Bench judge dealing with the matter advised counsel for LLRIB that it should seek a representation order with respect to individuals who had attended Timber Bay. This was then done by way of a notice of motion dated April 15, 2011. The relevant part of the motion read as follows: (

a) The Moving Party [LLRIB] requests the following: . . . (ii) A Representation Order pursuant to Rule 71(1) of The Queen’s Bench Rule; . . . [ 16 ] The Queen’s Bench judge also directed LLRIB to provide Anthony Merchant, Q.C. with notice of the application. This was presumably done because Mr. Merchant’s firm is plaintiff-side counsel in a class action commenced in 2001 on behalf of individuals who had attended Timber Bay. The suit names both Canada and the Province of Saskatchewan as defendants. [ 17 ] Mr.

Merchant declined to appear at the hearing of LLRIB’s motion on the theory that he did not wish to attorn to the jurisdiction of the Court. Nonetheless, he did submit a letter outlining three objections to the proposed representation order. He contended that: (

a) a representation order may not be granted in the context of an

Article Twelve application; (

b) representation orders may not be granted in a jurisdiction where class action legislation has been enacted; and (

c) LLRIB cannot “launch a representative action” based on a notice of motion. [ 18 ] For its part, Canada consented to LLRIB’s request for the representation order. [ 19 ] The Queen’s Bench judge considered and dismissed Mr. Merchant’s arguments. He made an order appointing LLRIB as “the Representative Party for the former residents of Timber Bay Children’s Home for the purpose of an

Article Twelve application pursuant

to the Indian Residential Schools Settlement Agreement”. III. ANALYSIS [ 20 ] This appeal was initiated by Mr. Merchant in the name of the appellants Kenneth Sparvier et al. However, as he explains it, he is in fact representing himself or his firm, Merchant Law Group. On the face of it, this is a peculiar situation. Nonetheless, the Queen’s Bench judge did direct that Mr. Merchant be served with LLRIB’s application for a representation order and he did specifically address and deal with Mr. Merchant’s arguments in the course of coming to his decision concerning the order.

Given the potential importance of this case and the fact that neither LLRIB nor Canada express any concern about Mr. Merchant’s status, I will proceed to deal with the substantive merits of the appeal. [ 21 ] I begin by noting that the representative order in issue here seems to serve no purpose, at least no purpose rooted within the four corners of the Agreement.

Article 12.01(1) states that “[a]ny person or organization” may apply to have a school included in

Schedule F. As a result, LLRIB is fully entitled to make an application in relation to Timber Bay without the benefit of a representation order. Indeed, as noted above, that is exactly what it did by way of the request made to Canada in 2008. For its part, Canada takes no exception to any of this and does not suggest that LLRIB, acting on its own behalf, was not in a position to make the initial request or to pursue this matter in the Court of Queen’s Bench. [ 22 ] I note as well that the initial request to have Timber Bay added to

Schedule F was made by LLRIB on its own behalf, not by LLRIB as a formal representative of those individuals who had attended the school. Accordingly, it was on its own behalf that LLRIB became the “Requestor” within the meaning of

Article 12.01(1). That

Article says “Any person or organization (the “Requestor”) may request that an institution be added to

Schedule “F”…”. As per

Article 12.01(5), the right to apply to the Court of Queen’s Bench following a refusal to add a proposed school to

Schedule F is one granted to “the Requestor”. This is potentially significant because LLRIB on its own behalf is perhaps not, for these purposes, the same party as LLRIB formally acting as a representative for individuals who attended Timber Bay. In other words, LLRIB (in a representative capacity) arguably may not have standing to make an application to the Court of Queen’s Bench. [ 23 ] There is another unusual wrinkle here as well. Generally speaking, if a representative claim is successful, it operates to the benefit of the persons being represented.

In other words, the representation order has the effect of ensuring that a positive ruling on the substance of a proceeding applies to the individuals under its umbrella. But, in the present context, the Agreement itself ensures this result. If LLRIB (or anyone else) is successful in having Timber Bay added to

Schedule F, then all former Timber Bay residents will be entitled to benefits under the Agreement by virtue of the operation of the Agreement’s own terms. Their right to settlement payments will not depend on whether they have been under the reach of a representation order. [ 24 ] In any event, the learned Queen’s Bench judge appears to have favoured a representation order in this case because he perceived it as having the effect of finally and conclusively resolving the status of Timber Bay for all of its former residents.

He explained his reasoning in this way: [16] The affidavit evidence filed on the motion indicates that there may have been as many as two thousand individuals who resided at [Timber Bay] during the relevant period. Currently, the LLRIB has information for 361 of the former residents. While more information is being obtained on an ongoing basis, it is unlikely that the LLRIB will be able to compile complete and accurate information for all former residents of [Timber Bay].

A representation order, on the other hand, will permit the application to be determined in a single proceeding in a conclusive manner for all former residents, even if they cannot all be identified at present. [ 25 ] The difficulty with this approach, in my respectful view, is that it is inconsistent with the terms of the Agreement itself. As indicated,

Article 12.01(1) specifically provides that “ [a]ny person or organization” may ask to have a school included in

Schedule F. By contrast, a representation order would mean that a finding in the Court of Queen’s Bench against LLRIB would bind everyone who had attended Timber Bay and would thus preclude all such individuals from bringing a different or subsequent application unless the Court of Queen’s Bench were to order to the contrary. This is because Rule 71, dealing with representative orders, provides as follows: 71(1) In a proceeding concerning: . . . (

f) any other matter where it may seem necessary or desirable, the court may appoint one or more persons to represent any persons, including unborn persons, unascertained persons, or persons or members of a class of persons who cannot readily be ascertained, found or served, who have a present, future, contingent or unascertained interest in, or may be affected by, the proceeding.

(2) Where an appointment is made under this rule, a judgment in the proceeding is binding on a person so represented, unless the court, in the same or a subsequent proceeding, orders otherwise. [emphasis added] [ 26 ] There is no doubt that an increased level of finality would flow from a Queen’s Bench decision made against the background of the representation order. However,

Article 12.01 of the Agreement is not about finality. It is about broadly allowing any person or organization to ask that a particular institution be added to

Schedule F. A representation order of the sort in issue here conflicts with that objective. [ 27 ] In saying this, I do not overlook the fact that the representation order is accompanied by a reasonably ambitious “notice plan” aimed at informing former Timber Bay residents about LLRIB’s application pursuant to

Article Twelve. The central message to be provided to former residents by way of the plan is that (

a) LLRIB will be making an application to add Timber Bay to

Schedule F, (

b) former residents are entitled to make submissions to the Court of Queen’s Bench about the

Article Twelve application, and (

c) if LLRIB

is successful, all former residents will become entitled to such benefits as are contemplated by the Agreement. Thus, the plan reflects an effort to ensure, as far as reasonably possible, that former Timber Bay residents are aware of the

Article Twelve application and are apprised of their entitlement to make submissions in relation to it. [ 28 ] As a result, it is apparent that the notice plan to some extent addresses the concern that the representation order might have the effect of foreclosing the rights of former Timber Bay residents without their knowledge. Nonetheless, this is not a complete response to the problem posed by the order. As indicated, the Agreement says that “any person or organization” may make an application in relation to a school like Timber Bay.

The representation order, by definition, does not square with that entitlement. It provides that LLRIB, and only LLRIB, will speak for former residents and that its application will decide their interests. [ 29 ] I observe as well that, even if the representation order was aimed at finally and comprehensively resolving the status of Timber Bay in a single application, it does not have that effect. This is because LLRIB has been designated to represent former residents of Timber Bay.

Article Twelve, on the other hand, does not say that only former residents may make a request to have an institution listed in

Schedule F. It says that any person or organization may make such requests. Accordingly, it would seem that, even if the representation order should remain in place and LLRIB’s application should prove unsuccessful, some other “organization” could nonetheless make a request to Canada that Timber Bay be added to

Schedule F. [ 30 ] Counsel did refer to the fact that a representation order similar to the one in issue here was made by the Ontario Superior Court of Justice in Fontaine et al. v. Attorney General of Canada et al ., 2012 ONSC 679 . However, this appears to have been done on consent and the Court in that matter did not explore any of the issues canvassed above. The Ontario precedent, as a result, is not helpful in resolving this appeal. [ 31 ] It follows from what I have said above that the bottom line in this case is clear. A Queen’s Bench judge acting as the “Appropriate Court” as per

Article 12.01(5) of the Agreement is not entitled to make an order inconsistent with

Article 12.01. This would amount to an amendment of the Agreement itself. The representation order in this case cannot be reconciled with

Article 12.01. Accordingly, it is apparent that it should not have been put in place. [ 32 ] All of this said, it seems highly unlikely that setting aside the representation order will lead to a flood of repetitive or redundant requests to Canada in relation to Timber Bay. Counsel advise that the LLRIB application is the only one which has been made to date. This says something in and of itself.

Further, if the LLRIB application should fail, any subsequent application which is not grounded on materially new or better evidence would no doubt be disposed of rather easily by both Canada and, if necessary, the Court of Queen’s Bench. On the other hand, if new evidence is discovered at a later date, then it seems only just that (subject to what is allowed by the terms of the Agreement and the governing law) the status of Timber Bay should be reconsidered. Accordingly, setting aside the representation order should not generate any practical mischief in relation to the administration of the Agreement. IV.

CONCLUSION [ 33 ] In my opinion, this appeal must be allowed and the representation order set aside. There will be no order with respect to costs. [ 34 ] This decision, of course, does not speak to any of the possible issues relating to deadlines for applying for benefits or other matters which might be in play if LLRIB’s

Article Twelve application is ultimately successful. They will have to be addressed, if necessary, in subsequent proceedings. DATED at the City of Regina, in the Province of Saskatchewan, this 19 th day of October, A.D. 2012. “Richards J.A.” Richards J.A. I concur. “Richards J.A.” as authorized by Ottenbreit J.A. I concur. “Herauf J.A.” Herauf J.A.