Fontaine v. Canada (Attorney General)

2014 BCSC 1221 Fontaine v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fontaine v. Canada (Attorney General), 2014 BCSC 1221 Date: 20140630 Docket: L051875 Registry: Vancouver Between: Larry Philip Fontaine et al Plaintiffs And The Attorney General of Canada et al Defendants Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50 Before: The Honourable Madam Justice B.J. Brown Reasons for Judgment Counsel for the Attorney General of Canada: C. Coughlan A. LeBlanc Counsel for Nunavut Tunngavik Inc.: R. Murray Place and Dates of Hearing: Vancouver, B.C. May 7, 2014 Written Submissions of the Crown: dated June 17, 2014 Written Submissions of Nunavut Tunngavik Inc.: dated June 25, 2014 Place and Date of Judgment: Vancouver, B.C. June 30, 2014 Overview [1] This is the latest decision dealing with a Request for Direction ("RFD") that has had a lengthy and frustrating history. This RFD was initially filed in September 2011. Since that time, the Applicants have amended it on several occasions. The Respondent has also brought several RFDs that impact on this matter. Finally, this Court has issued three directions that have provided guidance on the issues central to this RFD. This is on top of the numerous case conferences where the parties, together with this Court and/or Court Counsel have discussed these issues. [2] The Applicants' RFD essentially deals with its attempt to have various temporary

hostel arrangements and Inuit guardianship placements (collectively, the "Small Scale Residences") recognized as "institutions" under the Indian Residential Schools Settlement Agreement ("IRSSA" or "Settlement Agreement"). Initially, the Applicants advanced two categories of arguments: a. that the IRSSA should be interpreted in a manner that would include the Small Scale Residences; or, alternatively b. that the Small Scale Residences should be added to the list of institutions recognized in Schedule "F" of the IRSSA, pursuant to the process described in Article 12 of the IRSSA. [3] As will be made clear below, and as the Applicants recognized in their submissions, this Court's decision in Fontaine v. Canada (Attorney General), 2014 BCSC 941 (the "Beardy Decision") decided the first category of arguments against the Applicant's interest. The Applicants can no longer proceed on this basis. However, nothing in the Beardy Decision would prevent the Applicant from proceeding on the second basis discussed above. [4] Throughout the history of this matter, this Court has made efforts to facilitate the Applicant's RFD, extending deadlines and giving second opportunities and further instructions. However, these indulgences cannot carry on indefinitely. This is particularly the case as the Designated Amount Fund ("DAF"), which funds the Common Experience Payment under the IRSSA, is

scheduled to be wound up on December 31, 2014. [5] As such, this Court will permit the Applicants to proceed with their Article 12 application. However, the Court is putting the Applicants' counsel on notice that he must adhere to the directions included in this decision related to these applications, including filing and serving all of the materials related to these applications on or before July 31, 2014. This is a peremptory deadline. Failure to meet it will result in the dismissal of this matter. Relevant provisions of the IRSSA [6] The relevant provisions of the IRSSA relevant to this RFD are similar to those dealt with in the Beardy Decision. I will summarize them below for ease of reference. [7] The IRSSA provides for two means of compensation for those who suffered harm as a result of Canada's Indian Residential School policy. Of these two forms of compensation, one of them (the Common Experience Payment, or "CEP") provides compensation to individuals who attended an Indian Residential School ("IRS")[1]. [8] IRS is a defined term under the IRSSA. According to this agreement, IRS is defined as follows: "Indian Residential Schools" means the following: (1) Institutions listed on List "A" to OIRSRC's Dispute Resolution Process attached as Schedule "E"; (2) Institutions listed in Schedule "F" ("Additional Residential Schools") which may be expanded from time to time in

accordance with Article 12.01 of this Agreement; and (3) Any institution which is determined to meet the criteria set out in Section 12.01(2) and (3) of this Agreement. [9] Finally, Article 12 of the IRSSA provides the process for individuals to request that an institution be added to Schedule "F", as well as the criteria upon which this determination is to be made. [10] Therefore, an individual would only be eligible for a CEP if: a. he or she attended any of the institutions already listed in Schedules "E" or "F" of the IRSSA; or b. he or she successfully brings an application to have the institution that he or she attended added to Schedule "F" pursuant to Article 12 of the IRSSA. Procedural Background [11] As mentioned in the overview, this matter has a lengthy procedural history. This decision occurs within the context of the below-discussed background. [12] On September 19, 2011, the Applicants served their RFD. In their RFD, the Applicants sought to have the Small Scale Residences recognized as "institutions" under the IRSSA, thereby making the Applicants eligible for the CEP. [13] The Applicants subsequently amended this RFD on several occasions. By the end of these amendments, the Applicants had advanced essentially two bases for the inclusion of the Small Scale Residences as institutions: a. as a question of interpretation of the term "institution" in the IRSSA; or

alternatively b. that the institutions be added to Schedule "F" pursuant to Article 12 of the IRSSA. [14] It should be noted that 13 of the institutions that made up the Small Scale Residences at this time were already listed on Schedule "E" or Schedule "F" of the IRSSA. However, there were temporal limitations placed on the eligibility of these residences. The Applicants sought to have these institutions recognized for all years between 1940 and 1997. Three of the institutions were not previously recognized at all. [15] On October 22, 2013, I issued a direction regarding this RFD (the "October Direction"). In the October Direction, I summarized the Applicants' dual approach to recognition of the Small Scale Residences. Ultimately, I recommended a bifurcated approach to the issues in the RFD, with the interpretation issue decided first and the Article 12 application to follow (if still necessary). [16] In the October Direction, I also provided guidance regarding the Article 12 application, specifically: a. that an Article 12 application could not properly be considered on the basis of a broad category of similarly-situated institutions. Each individual proposed institution must independently satisfy the Article 12 criteria; and b. the Article 12 determination turns on the facts of a specific relationship between Canada and the residence in question. In the absence of a

compelling factual nexus, such as the one which existed in Fountaine v Canada, 2011 ONSC 4938, where two institutions were established and operated by the same group under essentially identical agreements with Canada, it would be inappropriate to consider a group of institutions for addition to Schedule "F". [17] On February 6, 2014, I issued a direction regarding an RFD brought by Canada (the "February Direction"). One of the issues in the February Direction was regarding the Applicants' RFD, which Canada sought to have dismissed for delay. This was in connection with an RFD brought by Canada which sought to achieve clarity concerning obligations impacting on the DAF. I denied Canada the relief it sought and allowed the Applicants a "further opportunity to rectify outstanding matters". I also instructed the Applicants' counsel to provide his schedule to Court Counsel with the anticipation that the RFD would be heard during the period of May 6-9, 2014. [18] In the February Direction, I also made note of the fact that counsel for the Applicants was given notice of Canada's intention to seek a dismissal of their RFD and that counsel did not respond to this notice. [19] Upon the release of the February Direction, counsel to the Applicants confirmed that his clients wished to pursue their RFD. [20] On February 12, 2014, I convened a teleconference in this matter to discuss certain

issues relating to the Applicants' RFD. [21] On February 18, 2014, Applicants' counsel advised that the Applicants were abandoning the interpretation issue and would be focusing solely on the Article 12 applications. [22] On March 6, 2014, I convened a teleconference in this matter. Prior to this teleconference I received submissions from both of the parties regarding whether the Applicants had adhered to the requirements of Article 12 of the IRSSA. [23] On March 13, 2014, I issued a further direction in the Applicants' RFD (the "March Direction"). In the March Direction I again made note of the context-specific nature of an Article 12 analysis, referring to my comments in the October Direction. Ultimately, I concluded that the Applicants failed to produce the evidence required for an Article 12 application and therefore did not comply with the October Direction. As a result, I gave the Applicants a further opportunity to regularize their RFD by adhering to the process contemplated by the IRSSA and the October Direction. I gave the Applicants until March 21, 2014 to advise Canada and Court Counsel whether they intended to proceed with the RFD. [24] On March 27, 2014, counsel for the Applicants wrote to the Court and to Canada requesting a teleconference, requesting clarification on what is required to regularize their RFD (the "March Letter"). In the March Letter, the

Applicants proposed the following timetable for moving forward: a. the Applicants regularize their RFD by May 9, 2014; b. the Applicants file their Notice of Applications and corresponding affidavits by June 23, 2014; c. Canada shall provide responding affidavits (if any) by August 7, 2014; d. Cross-examinations on affidavits shall occur in August and September 2014; and e. the hearing would be held in December 2014. [25] On April 14, 2014, I convened another teleconference in this matter, pursuant to the March Letter. Prior to this date, Canada wrote to the Court and to the Applicants to inform them of its intention to seek the dismissal of the Applicants' RFD for delay. [26] On May 7, 2014, the Applicants filed the "regularized" RFD which is the subject of this decision. That same day, another teleconference was convened in this matter. During this teleconference, counsel to the Applicants represented that he would finalize the affidavits for the Article 12 application "within 60 days". I note that this 60 day period will expire on July 6, 2014. Impact of Beardy Decision [27] In the midst of the above-noted procedural history, this Court issued the Beardy Decision on May 28, 2014. This decision called on the Court to determine whether the term "institution" in the IRSSA could be interpreted broadly to include facilities that are ancillary to the institutions that are

explicitly recognized in the IRSSA. The Court determined that such an interpretation would be inconsistent with an objective understanding of the words in the IRSSA. [28] This Court invited submissions from the parties regarding how the Beardy Decision might impact the Applicants' RFD. Positions of the Parties (a) Applicants [29] The Applicants take the position that the Beardy Decision has no impact on their RFD. Simply put, the Applicants argue that the Beardy Decision focused on the proper interpretation of a specific term in the IRSSA. This is a distinct exercise (argue the Applicants) from an Article 12 analysis which calls on the Court to determine whether there are sufficient indicia of joint responsibility to add an institution to Schedule "F" of the IRSSA. (b) Canada [30] In contrast to the Applicants, Canada argues that the Beardy Decision determines all substantive matters at issue in the Applicants' RFD. According to Canada, the Applicants' RFD squarely engages consideration of the meaning of the term "institution" on a purported Article 12 application. Because all of the Small Scale Residences were ancillary facilities, and because in the Beardy Decision it was decided that ancillary facilities are not included in the term institutions in the IRSSA, the Beardy Decision is dispositive of the Applicants' RFD. Analysis [31] After consideration of each side's

arguments, this Court agrees with the position of the Applicants. Although the Beardy Decision is dispositive of the interpretation of the term "institution" as that term is used within the IRSSA, this is a distinct exercise from the analysis required by an Article 12 application. [32] As such, the Beardy Decision does not decide the Applicants' matter and this Court will permit the Applicants to proceed with their Article 12 application. However, in light of the above-noted procedural history in this matter, and the impending wind-down of the DAF, this Court is placing the Applicants on a strict deadline for submitting the relevant materials for this application. (a) The Beardy Decision [33] The context in which the Court decided the Beardy Decision is helpful in understanding the scope of that decision. Mr. Beardy resided at facilities that were not recognized in Schedules "E" and "F" of the IRSSA, but rather were ancillary to such institutions. For example, although he attended school at the McKay IRS (which is recognized in the IRSSA), for a portion of the time he attended this school he did not live in this IRS, but rather (at the direction of the school's operators) he lived in a private residence. When Mr. Beardy applied for the CEP, he did not receive this payment for the years during which he resided at a private residence. [34] Mr. Beardy brought his RFD to have these

ancillary facilities recognized as institutions under the IRSSA, thereby entitling him to CEP for the periods during which he resided at these locales. Counsel to Mr. Beardy argued that the Court should deal with the ancillary facilities as a question of interpretation instead as an application under Article 12. This was because an Article 12 application would be "too onerous" for his client and the other individuals on the behalf of which he brought his RFD (see paragraph 31 of the Beardy Decision). [35] Thus, the submissions of counsel to Mr. Beardy suggest that he impliedly saw two distinct methods to have these institutions recognized: a. argue that the term "institution" should be broadly interpreted so as to include these facilities; or b. bring an Article 12 application to have these facilities added to Schedule "F". [36] This context suggests that the interpretative question dealt with in Beardy was distinct from an Article 12 application. Further, as the Applicants' counsel noted in his submissions, the Court in the Beardy Decision made a similar observation at paragraph 48 of that decision. Here, the Court rejected Mr. Beardy's argument that Article 12 should be used to inform the scope of the interpretation of the term "institution" because such a submission would result in: [U]sing the language of the article to allow the parties to circumvent the procedure that

Article 12 details regarding the addition of institutions for the purposes of the Settlement Agreement. [37] Moreover, these issues are conceptually distinct. In the Beardy Decision, this Court was asked to interpret a specific term of the IRSSA and to determine whether the parties intended for it to be broadly interpreted. As a question of contractual interpretation, this Court determined that a broad interpretation was inconsistent with the intentions of the parties. The Court's decision on this issue should have no impact on the fact that the parties to the IRSSA also contemplated a procedure that would call upon a Supervising Judge to review the factual record and determine whether to add an institution to Schedule "F", having regard to the criteria set out in section 12.01(1) and (2) of the IRSSA. These are distinct parts of the Settlement Agreement and should be treated as such. [38] Finally, the argument that the Beardy Decision determines the issue in this matter suffers from the following flaw in logic. The holding in the Beardy Decision was that the term "institution" is narrowly understood to refer only to those institutions specifically referred to in Schedules "E" and "F". Part of the rationale for this holding was that the IRSSA contemplates that Schedule "F" may be augmented as parties bring Article 12 applications. In fact, as the quotation above suggests, a

narrow interpretation of the term "institution" is necessary to protect the Article 12 application process. It cannot be that this holding was in anyway meant to prevent parties from bringing Article 12 applications. (b) The Applicants' Article 12 Application [39] As such, the Beardy Decision would preclude any interpretative arguments that the Applicants may seek to bring. However, as the Applicants' regularized RFD and written submissions for this hearing make clear, the Applicants are no longer pursuing such arguments. [40] The Beardy Decision does not prevent the Applicants from bringing an Article 12 application to have the Small Scale Residences recognized as institutions and added to Schedule "F". [41] As discussed above, in light of the procedural difficulties experienced in this matter, the Court is imposing a peremptory deadline on the Applicants to file their Notice of Application and sworn affidavits by no later than July 31, 2014. Failure to meet this deadline will result in the automatic dismissal of the Applicants' RFD. [42] As noted in the October Direction, an Article 12 application requires a "fact driven inquiry". The Applicants must lead evidence of the specific relationship between the residence in question and Canada for each of the specific institutions that they seek to have added to Schedule "F". For further clarity, given that their regularized RFD

seeks to add 26 institutions to Schedule "F", the Applicants must produce evidence relating to the specific relationship between each of these 26 institutions and Canada. This is requirement to produce evidence is not new. It is one that has always existed where someone has sought to add one or more institutions to those already listed in Schedule "F". Disposition [43] The Applicants will be given one final opportunity to bring their Article 12 application. The Applicants must deliver their Notice of Application and sworn affidavits containing evidence relating to the 26 residences referred to in their regularized RFD by no later than July 31, 2014. This deadline is peremptory and failure to meet it will result in the automatic dismissal of the Applicants' RFD. [44] I will leave it to the parties to schedule the remaining steps required to bring this matter to hearing. However, the hearing must be held before December 19, 2014. _________ The Honourable Madam Justice B.J. Brown [1] "Eligible CEP Recipient" is defined in section 1.01 of the IRSSA as meaning "any former Indian Residential School student who resided at any Indian Residential School prior to December 31, 1997 and who was alive on May 30, 2005 and who does not opt out, or is not deemed to have opted out of the Class Actions during the Opt-Out Periods or is a Cloud Student Class Member".