Fontaine v. Canada

The Manitoba Court of Appeal released a decision on October 9, 2014 in Fontaine et al. v. Canada (Attorney General) et al., in which the Attorney General of Canada ("Canada") sought to appeal an order providing directions made by the supervising judge pursuant to the Indian Residential Schools Settlement Agreement (the "Agreement").

The Court of Appeal allowed the appeal in order to remove two of the supervising judge's directions but in most respects Canada's appeal was dismissed. The key issue addressed in this case was whether or not a person with a claim under the Agreement for an amount that exceeds the maximum amount that can be awarded by an adjudicator ($250,000) must fully and finally exit the Independent Assessment Process ("IAP") provided for under the Agreement if they wish to pursue the full amount of their claim through the courts.

The supervising judge came to the conclusion that the term of the Agreement that allowed claims for more than $250,000 to be pursued in the courts was ambiguous as to whether it indicated an intention that the courts would take jurisdiction over the entire claim or just the discrete issue that could take the claim beyond the maximum award limit for the IAP process - in this case, the issue of actual income loss. The supervising judge held that the provision of the Agreement in question should be interpreted so that only the discrete issue of actual income loss proceeds before the courts, taking into account such goals as reconciliation and access to justice in reaching this conclusion. The Court of Appeal expressed some disagreement with the supervising judge's reliance on certain documents in order to interpret the provision as it did. However, the appellate court ultimately came to the same conclusion as to the appropriate interpretation of the Agreement and did so with an explicit recognition that its interpretation was most consistent with the goals of access to justice and reconciliation that were cited in the Agreement's preamble.

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