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Fontaine v. Canada (Attorney General)
2015 CarswellOnt 2981

Decision: Motion for examination—motion denied
Date of Decision: March 4, 2015
Judge: Perell J.
Court: Ontario Superior Court of Justice
Lawyers:
Lawyer for the applicants: Fay Brunning
Lawyers for the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat (Canada): Tina Hobday and Daniel Baum

Background:

The within action involves the Indian Residential Schools operated across Canada by religious organizations between the 1860s and 1990s. A number of class actions were commenced for the loss of culture and language, as well as the serious emotional, physical and sexual abuse suffered by the First Nations, Inuit and Metis children who attended these schools.

In May 2006 the Indian Residential Schools Settlement Agreement (“IRSSA”) was reached. The IRSSA established a Common Experience Payment (“CEP”) for all claimants, as well as an Independent Assessment Process (“IAP”) to pay claimants compensation for the sexual abuse, physical abuse and other wrongful acts suffered.
The action was certified and the settlement approved in nine Canadian jurisdictions. As of June 2014, 25,800 claims have been resolved.

In November 2014, the nine claimants/applicants who are former students of the Bishop Horden Hall residential school filed a Request for Directions (“RFD”). The applicants sought a direction: (A) to the Attorney General of Canada (“AGC”) and the Anglican Church of Canada (“Anglican Church”) for disclosure of the termination of employment and/or criminal charges against adult persons at Bishop Horden and to amend the narrative and person of interest reports; (B) to the AGC and Anglican Church that if they have additional documentary disclosure to file for any residential school that it is required to do so immediately and on a continuing basis [see Issue 2014-02—Case Updates—“Fontaine v. Canada (Attorney General)”]; and, (C) to the Secretariat set up a process to put IAP claimants in touch with one another when one claimant has pleaded that they witnessed the abuse of the other.

The RFD is scheduled to be heard on May 20, 2015.

In March 2015, these nine claimants sought an order that the Executive Director of the Indian Residential Schools Adjudication Secretariat (“Secretariat”) be required to attend and be examined under oath in relation to the RFD.
The motion was made in writing before Justice Perell.

Update:

Justice Perell did not engage in an analysis of the merits of the RFD or the question of whether the Executive Director was correct in asserting that it enjoys a form of immunity from testifying in the circumstances before the Court. Rather, Justice Perell disposed of the motion on the basis that the applicants did not demonstrate the relevance of any evidence that might be obtained from the Executive Director to the issues underlying the RFD.
The Court applied the same test that is typically applied in civil proceedings under rule 39.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 94, which applies where a summons to a witness is challenged. Under rule 39.03 the party seeking to examine has the onus of proving that the evidence is relevant to the proceeding and that the witness is in a position to offer the evidence sought.

Justice Perell held that the applicants failed to explain how the process used by the Secretariat to check compliance would assist in interpreting the scope of the defendants' disclosure obligations. Rather, Justice Perell held that the issues raised by the RFD were “largely normative not evidentiary or descriptive” as the issues raised by the RFD concern the defendants' obligations and not the Secretariat's review of those disclosure obligations. Additionally, the Court held that the Secretariat's obligation to provide contact information for witnesses of abuse was a matter of interpreting the IRSSA and does not depend on how the Secretariat processes applications or disclosure process.
An examination of the Executive Director was found to be unnecessary and redundant, and the applicants' request to examine the Executive Director for the purpose of the RFD was denied.

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