Fontaine v Canada

The British Columbia Court of Appeal released a decision on March 6, 2015 in <a href="" title="Fontaine v. Canada (Attorney General)"><i>Fontaine v. Canada (Attorney General)</i></a> [sub nom. Myers v. Canada (Attorney General)], dismissing an appeal from an unsuccessful application seeking to have the deadline for pursuing claims of abuse and injuries under the Indian Residential Schools Settlement Agreement (IRSSA) extended or deemed to have been met.

The appellants in this case were four Aboriginal persons who wished to pursue claims for abuse and injuries they suffered while attending residential schools. All four appellants had sought legal and other assistance in order to make claims through the Independent Assessment Process (IAP) set up under the IRSSA. The IRSSA provided that claimants needed to apply by September 19, 2012 in order to pursue a claim through the IAP system or their entitlement to make such a claim would be “forever extinguished”. Due to alleged errors by the former legal counsel of these four individuals, the appellants failed to meet this deadline.

In appellants filed a Request for Directions with Brown J. of the British Columbia Supreme Court in order to either have the deadline for applying to the IAP system be extended for them or have their applications be deemed as having been received on time. Brown J. held that the Court had no jurisdiction to do so. The Court was not given any express authority under the IRSSA to extend the deadline and Brown J. found that the terms of the IRSSA could only be interpreted such that the signatories intended for the deadline to be strictly enforced. Brown J. also held that the Court’s supervisory jurisdiction over class proceedings did not empower her to extend the deadline.

The Court of Appeal noted that “[a]ll sympathies favour the appellants” and the residential schools system marks “one of the darkest chapters of our history” with “pernicious effects [that] continue to be felt even to this day”. Nevertheless, it held that Brown J. had correctly concluded that the Court did not have the jurisdiction to accommodate the appellants’ application.

The Court of Appeal specifically found that the fact that the IRSSA had explicitly empowered judicial time extensions for the Common Experience Payments available under the settlement agreement while providing no similar judicial powers for the IAP system was “fatal” to the appellants’ position. In the Court of Appeal’s view, this “reflects a clear intention that the deadline for IAP claims be a true and final limitation date”.

The Court of Appeal also noted that the IRSSA is “a settlement of massive litigation” that provided the parties with many advantages but also required many compromises, such as the “bright-line deadline” for IAP claims. The Court stated that granting an extension to the four appellants could open the door to many more IAP claims, would sacrifice the certainty won by the respondents “for a price” in the agreement, and could potentially compromise the equities struck between the parties in the overall negotiation process that led to and forms the basis of the IRSSA.