Fontaine v. Canada (Attorney General)

2012 BCSC 313 Fontaine v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fontaine v. Canada (Attorney General), 2012 BCSC 313 Date: 20120301 Docket: L051875 Registry: Vancouver Between: Larry Philip Fontaine et al Plaintiffs And The Attorney General of Canada et al Defendants Before: The Honourable Madam Justice B.J. Brown Direction Counsel for Canada: C.A. Coughlan Counsel for the applicant, Larry Beardy: P.J. Faulds, Q.C. Heard via Written Submissions Vancouver, B.C. Place and Date of Direction: Vancouver, B.C. March 1, 2012 [1] On December 15, 2006, the courts in nine provinces and territories concurrently issued reasons approving a national settlement concluding various class actions related to the Indian Residential Schools throughout Canada. These reasons were followed by a set of orders, incorporating the Settlement Agreement and addressing issues pertaining to the implementation and administration of the Settlement. The orders were issued in substantially the same form in each court. I will refer to these orders collectively as the "Approval Orders". [2] There are two elements of the Settlement through which claimants may obtain individual compensation. One aspect is the Common Experience Payment ("CEP"), available to all eligible class members who resided at a Residential School. The second aspect of individual compensation is the Individual Assessment Process which provides for

compensation to class members who establish that they suffered serious physical abuse, sexual assaults or serious psychological harm at a Residential School. [3] On this Request for Direction, the Applicant seeks direction as to the manner in which the CEP eligibility criteria set out in the Settlement ought to be interpreted. In substance, the Applicant is concerned with the fact that the eligibility provisions of the Settlement Agreement (incorporated into the Approval Orders) have been interpreted to exclude those students who, though residing away from home while attending classes at Residential Schools, were billeted in private boarding homes or similar places rather than in the school's residence. [4] The Applicant has requested a hearing to determine the following issues: (a) whether students billeted at private boarding homes or similar facilities while attending a Residential School are eligible for the CEP; (b) in the alternative, whether the private boarding homes referred to above were themselves institutions within the meaning of Article 12 of the Settlement Agreement; or (c) in the further alternative, whether the Approval Orders ought to be amended to expressly provide CEP eligibility to students billeted at private boarding homes and similar facilities. [5] The Applicant also seeks the following additional relief: (a) an order requiring the National

Administration Committee ("NAC") to permit him access to CEP claim files in which eligibility was denied because the claimant had been billeted in a private boarding home; (b) an order requiring Canada and other defendants to produce records relating to the role they played in the billeting of students; and (c) costs and/or funding with respect to the contemplated motion. [6] Canada resists the substantive relief sought by the Applicant. It is Canada's position that the CEP eligibility criteria are set out in the Settlement in a clear and unambiguous fashion. Under the criteria, eligible claimants must have resided at a Residential School, defined within the Settlement Agreement as those institutions listed on Schedules E and F thereto, or those which may be added to Schedule F pursuant to Article 12 of the Settlement subsequently. [7] No private boarding homes have yet been added to the Schedule F of the Settlement Agreement. Canada also takes the position that the Article 12 criteria for recognition as a Residential School would have to be met by each institution (or boarding home) sought to be added. Canada also argues that the Applicant's approach is premature with respect to the Article 12 issue. As a matter of procedure, it is argued, a request to add an institution to Schedule F must be made to Canada prior to seeking the Court's direction pursuant to Article 12. [8]

Regarding the Applicant's request to amend the Settlement, Canada states that it does not consent to such an amendment as required by subsection 4.11(14) and therefore the Court has no jurisdiction to grant this relief. [9] As for the additional relief requested by the Applicant, Canada consents to the disclosure of the NAC files sought, so long as the Applicant obtains consent from each claimant or all personal information is redacted. The NAC concurs with this position. [10] Canada resists the Applicant's request that Canada and the other defendants provide documentation on the following bases: (a) such production is not available in the context of settled litigation; (b) no evidence is admissible on an application for interpretation of the provisions of the Settlement; (c) the onus is on the Applicant in an Article 12 application to adduce sufficient evidence to satisfy the test therein; and (d) the nature of the production sought is not relevant to either an application for interpretation of the provisions of the Settlement or an Article 12 application. [11] Finally, Canada asserts that there is no provision of the Settlement that would permit funding for the Applicant. [12] The Administrative Judges have previously provided guidance in response to an inquiry from the NAC regarding the billeted students issue. In that instance, the Administrative Judges addressed the

question of how the NAC ought to go about determining the proper interpretation of the CEP eligibility criteria as they pertain to billeted students. The Applicant appears to have framed his Request for Directions with that guidance in mind. [13] The guidance previously provided by the Administrative Judges, dated December 1, 2008, (the "December 2008 Direction") noted that an interpretation of the CEP eligibility criteria that includes billeted students could well constitute an amendment to the Settlement, and that such a determination could not be made on an abstract basis. As stated in that direction, "[t]he issues must be decided on motion with a proper evidentiary record before all of the supervising courts in each jurisdiction." [14] On the practical considerations of the manner in which the billeted student issue could be determined, the Administrative Judges wrote that the NAC could initiate a process by which it would place an identical record before each of the approving courts consisting of representative cases where the billeted student issue was raised. In this context, the Administrative Judges wrote that "[w]here a case is selected, the NAC should obtain the consent of the appellant-claimant to stand as a representative." [15] Once the representative cases were selected, the Administrative Judges suggested that they be made the subject of a Request for

Directions. The Administrative Judges also noted the following at paragraph 22 with regard to funding of such a process: [W]e believe that the steps set out above should be conducted within the budgeted monthly compensation of the NAC under the Settlement Agreement. However, once those steps are completed, the NAC, or any of its members, may make submissions with respect to whether additional funding is necessary to ensure that the process is adequately resourced. Should it be found by the courts that additional funding is necessary, directions will be issued with respect to quantum and manner of payment. Once all of the above steps have been completed the issue will be decided. Analysis [16] As a starting point, I note that this Request for Directions has not been brought by the NAC, but rather by the Applicant in his personal capacity, represented by a member firm of the National Consortium. The National Consortium is one of the entities with a representative on the NAC. [17] The process for determining the billeted student issue set out in the December 2008 Direction was in consideration of the role and position of the NAC in the broader context of the Settlement. As a result, some of the procedure set out in that direction is not necessarily appropriate in the context of a proposed application by an individual claimant. [18] Further, the Applicant has requested a hearing in

regard to three specific grounds on which he intends, in essence, to advance his claim that billeted students should be eligible for CEP compensation under the Settlement Agreement. However, based on a plain reading of the Settlement Agreement, it is my view that at least two of these grounds cannot succeed at this point. [19] First, the request by the Applicant for an order amending the Approval Orders in the manner sought here suffers from a fatal flaw. The agreement between the parties, incorporated into the Approval Orders, requires the unanimous consent of the NAC for a proposed amendment as a prerequisite to consideration by the courts. As set out in the Settlement Agreement at subsection 4.11(14): (14) Subject to Section 6.03(3), no material amendment to the Approval Orders can occur without the unanimous consent of the NAC ratified by the unanimous approval of the Courts. In other words, the amending procedure is as follows. The proposed amendment must be advanced with unanimous support of the NAC. Thereafter, the supervising courts must unanimously approve the proposed amendment in order for it to be effective. Although the language refers to "material amendment", there can be no doubt that an amendment that has the potential to increase either the number of people eligible, or the compensation available to previously qualified people, is a material amendment to the

settlement. On this point, I note that there is a clear distinction between an interpretation of the provisions of the settlement that has the effect of increasing the size of the class beyond that previously recognized at an administrative level and an amendment specifically directed at varying the eligibility requirements. In the former instance, the increase arises from what would be regarded as the correct interpretation of existing language whereas the latter amends the language entirely. [20] On a more concrete level, no unanimous consent for the proposed amendment has been provided by or on behalf of the NAC. Further, pursuant to subsections 4.11(1) and 4.09(4), one of the members of the NAC is counsel for Canada and the indications are that Canada will not consent to an amendment of the Approval Orders of the nature sought by the Applicant. [21] Whether Canada's position will change in the future is a matter for another day. At the moment the application for an amendment is incomplete and will remain so until the unanimous consent of the NAC to the amendment is obtained. Until such time as that consent has been provided, there is no need for a hearing with respect to an amendment to the Approval Orders. [22] As for the addition of private boarding homes to Schedule F pursuant to Article 12, that request is also clearly premature. As Canada points out, the Settlement

requires an Applicant to first make an unsuccessful request that Canada add an institution in accordance with Article 12. It is only after the request has been rejected by Canada that a further application may be made to the courts. As no request has been made to Canada by the Applicant under Article 12 at this point in time, there is no basis for a court proceeding. [23] The third ground of relief requested by the Applicant relates to interpretation of the Approval Orders. An application of that nature could properly be considered by the supervising courts. However, it is useful to revisit the December 2008 Direction in that regard. There, the concern implicit in the language of the Administrative Judges was to avoid the problem of having what in substance is an application to amend being advanced as an application for interpretation. Accordingly, the Direction provided that an evidentiary record was necessary in order for the courts to consider an application for interpretation. However, it is also clear that in referencing the ability of the NAC to "select representative cases" from which the evidentiary record could be developed, it was the intention that the record was to be related to the circumstances of specific individuals. [24] In order to advance the application, the Applicant seeks production or access to approximately 100 NAC appeal files in which the billeted

student issue was raised, as well as production of records and documents in the possession of Canada and other defendants relating to their roles in billeting Residential School students in private homes or other similar places. [25] The Applicant seeks access to NAC claims files in order to help establish the factual record upon which the billeted students issue will be determined. Specifically, the Applicant requests that the NAC provide a table outlining the particulars of all relevant files, as well as the entire file of a representative case of the sort discussed in the December 2008 Direction. [26] It must be emphasized again that the December 2008 Direction was tailored to the specific context of a Request for Directions to be submitted by the NAC. The procedure to be followed by an individual claimant such as the Applicant will necessarily differ from the process set out for the NAC. For example, the access sought by the Applicant would certainly compromise the expectations of privacy held by the claimants in question. [27] Canada's response, supported by the NAC, would see any access obtained by the Applicant limited to those files for which the Applicant had obtained the claimant's consent to view; otherwise, any access should be on a wholly anonymous basis. [28] It seems to me that the position advocated by Canada, and concurred in by the NAC, is in general, the

proper approach. Beyond the ordinary obligations of the NAC to maintain claim materials in confidence, the December 2008 Direction specifically directed the use of only those claim files for which consent had been obtained from the individual involved. However, there must be a process for obtaining consent. That process must also take into account past evidence presented and representations made to the courts, that some claimants have experienced difficulties understanding the implications of agreements made and documents they are asked to sign. It is also of note that the Applicant is represented by counsel in the matter. [29] In consideration of the foregoing, the process for obtaining consent will be as follows. The NAC shall facilitate communication by counsel for the Applicant with relevant claimants for the purpose of seeking consent for the use of their files in support of an application to determine the billeted student issue. The consent sought shall be limited to permitting counsel for the Applicant to use the file information for the purpose of advancing the application related to the billeted student issue. The information contained in the files shall not be disclosed or used other than for the purpose of the preparation and presentation of material to the court. I have used the emphasis advisedly for the purpose of making it clear that the access to the information

is to be limited to counsel personally. [30] In the event that this process does not produce a sufficient amount of information to develop an adequate evidentiary record, counsel for the Applicant may have access to those files determined by the NAC to involve billeted students. Counsel for the Applicant shall be at liberty to make a summary of those files on an anonymous basis for the purpose of proceeding with the Application. In the absence of the consent of the individual involved, no personal identifying information in any particular file will be provided. With respect to the use and disclosure of the information, the same restrictions and caveats set out in paragraph 29 shall apply. [31] The Applicant has also sought production of documentation from Canada and other defendants relating to their role in billeting residential school students in private boarding homes or similar places. The stated reason for seeking these materials from Canada and other defendants is to assist in determining, inter alia, how and by whom billet facilities were selected, administered and supervised, who bore the costs of billeting a student, how and why students were selected for billeting, and what role, if any, Canada and the operators of Residential Schools played in the foregoing. [32] Canada's position, as set out above, is that: (a) such production is not available in the context of

settled litigation; (b) no evidence is admissible on an application for interpretation of the provisions of the Settlement; (c) the onus is on the Applicant in an Article 12 application to adduce sufficient evidence to satisfy the test therein; and (d) the nature of the production sought is not relevant to either an application for interpretation of the provisions of the Settlement or an Article 12 application. [33] In my view, in the context of the application for an interpretation of the Approval Orders, the requested production would not necessarily be of any assistance in the determination. The real issue that arises on an interpretation of the Approval Orders in relation to eligibility can be simply stated: "Did the parties intend for this individual to be eligible for compensation under the settlement?" Where there is no ambiguity, the interpretation will be made on the language used. Where an ambiguity is established, the court may look at extrinsic evidence and factual background to determine the intention of the parties. [34] There is a further nuance at play here as well. The Settlement Agreement, in Article 12, provides for the addition of institutions that meet certain criteria to Schedule F. If an institution is added, it then falls within the definition of Residential School set out in the agreement. In other words, there would be no need for an interpretation of

the term "Residential School" in that instance, as the issue would have been resolved by other provisions of the settlement. [35] While it may be the case that the Applicant has framed his production request in view of the totality of the relief sought, having disposed of the issues relating to the amendment of the Approval Orders and the Article 12 application, I am not prepared to order the production sought at this time. I would add, however, that this should not be viewed as foreclosing an order for production in the nature sought if an Article 12 application were properly made and insofar as it applied to the specific institution subject to that application. [36] In addition, I am prepared to revisit the request for disclosure after the actual application for interpretation of the Settlement Agreement is filed. There may be at that time, depending on the position taken and the grounds relied upon in support, a basis for ordering additional documentary production. [37] Finally, the Applicant has requested funding for his costs associated with advancing an application regarding billeted students before the courts "as contemplated in paragraph 22 of the Court's previous decision." [38] To be clear, the December 2008 Direction spoke to an application advanced by the NAC, and even in that instance, did not necessarily contemplate that any such application would necessarily be

the subject of an order regarding funding, but rather that the issue would be considered when the application was presented. [39] In this case, the application is not being advanced by the NAC, but rather by an individual represented by a member firm of the National Consortium (effectively the class counsel in the litigation that led to the settlement). [40] I am not prepared to order funding of the application at the present time for the following reasons. First, there are only two possible sources for funding that might even be considered within potential reach of the court. One is Canada as the funder of the costs of the administration and distribution of the settlement. In general terms, a class action administrator acts at the direction of the court and pursuant to the terms of the settlement. There is no indication that Canada as administrator has been either in breach of or derelict in that duty here and thus there is no basis to visit the cost of the application on that particular purse. Further, while Canada as defendant will likely oppose the application, the costs that are incurred in that process may be dealt with under the regular cost rules applicable to court proceedings once it has been determined. [41] The second potential source of funding that may be available would be from the settlement fund itself. However, that fund has been established as a trust, with

certain designated beneficiaries, including those recognized as class members. One ground of relief to be sought on the proposed application is to have individuals who are not regarded as class members currently added to the class. If funding were ordered from the settlement fund, the result of an unsuccessful application would be that benefits would have been taken from class members for the use of non-class members-- an inappropriate use of the settlement monies. [42] There is a second reason to deny funding. Significant fees were approved for counsel in respect of the underlying litigation and the negotiation of this settlement. In my view, the words of Pitfield J. in Killough v. The Canadian Red Cross Society, 2007 BCSC 941, at paragraph 22 bear consideration: [ ] I see no reason why Class Counsel should be paid their full fee in whatever amount has been agreed or approved before benefits have in fact been quantified and paid to those who are members of the class. Most assuredly, Class Counsel should not expect to be paid for the settlement they have negotiated, and then paid again for correcting deficiencies in its terms or resolving problems that may be encountered in the course of administration directed at actually providing benefits to members of the class. [Emphasis added] [43] The interpretation issue related to billeted students arises directly from the wording of

the Settlement, as negotiated by class counsel among others. Class counsel have been well compensated for their role in negotiating the settlement. In my view, the application to be advanced falls within the scope of work for which class counsel has already been paid. While the court has no authority to order that funding for the application be provided by class counsel or any counsel involved in the negotiation, there is no other source of funding that would be appropriately called upon. Accordingly, there will be no order as to advance funding of the application. However, submissions as to costs may be made subsequent to its determination. [44] A hearing will be scheduled with respect to the issue of interpretation of the Settlement Agreement as set out in the Request for Directions. A timetable for the filing and delivery of materials should be developed by the parties in consultation with court counsel. The application will be set down to be heard within 90 days after all materials have been delivered and filed. "B.J. Brown J." The Honourable Madam Justice B.J. Brown