Fontaine v Canada

Background

The applicants in this case were nine former students of Bishop Horden Hall, an Indian residential school, who had made claims for compensation through the Independent Assessment Process (IAP) under the Indian Residential Schools Settlement Agreement (IRSSA). They filed a Request for Directions (RFD) in relation to their claims in which they made several requests directed at ensuring that the defendants’ disclosure was complete.

One of Canada’s obligations under the IRSSA is to prepare reports about “persons of interest” for use in the IAP process. In one particular claim related to Bishop Horden, Canada disclosed that a teacher once employed there had been later criminally convicted for abuse against students at another Indian residential school. From the applicants’ perspective, this disclosure called into question the accuracy of Canada’s persons of interest report on Bishop Horden that stated there had been no known convicted abusers present at the school.

At the same time, one of the applicants had indicated in her own IAP claim that she witnessed child abuse at Bishop Horden and that a number of the school’s employees were criminally charged and/or fired for the abuse. None of these allegations were substantiated by or mentioned in Canada’s persons of interest report. Counsel for the applicants therefore sought further disclosure from Canada, particularly with respect to the termination of supervisors and about criminal charges and convictions. However, Canada did not provide any further disclosure.

In addition to requesting further disclosure directly from Canada, counsel for the applicants wrote to the executive director of the secretariat to suggest that the secretariat take steps to ensure the defendants’ disclosure was complete. Among other things, counsel for the applicants suggested that the secretariat ought to require affidavits of documents for each school from each defendant. The applicants’ counsel argued that the secretariat was obliged to take such steps under the IRSSA, which stated that a hearing date could only be set once the secretariat was “satisfied that exchange of documents [… was] as complete as reasonably necessary […]”.

Counsel for the applicants also raised concerns with the executive director that the secretariat was not providing IAP claimants with the names of individuals who witnessed their abuse. The applicants’ counsel suggested that the secretariat should connect IAP claimants with individuals who witnessed their abuse, as disclosed through the witnesses’ own IAP claims or through signed statements to the Ontario Provincial Police.

The secretariat declined these requests, contending that it is up to counsel for the claimants and the defendants to provide all relevant documents and that the secretariat does not have any role in conducting reviews on behalf of claimants or contacting persons mentioned in documents. Counsel for the applicants made further requests of the secretariat that were also rejected. The secretariat argued that it was “akin to a registry” and could not engage in the substantial elements of a file.

Following these exchanges, the applicants filed their RFD for further disclosure from the defendants and for the secretariat to arrange for contact between IAP claimants who have witnessed each other’s abuse. For the purposes of pursuing this RFD, the applicants also sought a Court order requiring the executive director to attend to be examined under oath on the secretariat’s processes for checking whether defendants and claimants in the IAP process have filed all mandatory documents.

This decision relates to the order for the executive director to attend for examination under oath.

Court’s decision

Arguments were raised as to whether the proposed examination was an abuse of process and whether the executive director enjoyed a form of immunity from testifying in the circumstances. The merits of the RFD were also disputed. However, the Court did not find it necessary to address any of these issues. The applicants’ request for examination of the executive director was instead dismissed on the basis that they had failed to discharge their onus to establish that evidence sought from the executive director would be relevant to the issues raised in the RFD. As the issues in the RFD were about what the defendants ought to be disclosing and not what the secretariat was doing to ensure disclosure compliance, the Court held that the RFD could be decided without the information the applicants wished to elicit from the executive director in discovery.

The Court also found it “unnecessary and redundant” to examine the executive director on the issue of the secretariat putting witnesses in touch with IAP claimants. The Court held that whether the secretariat was obliged to do so would turn on its interpretation of the IRSSA and would not depend on the subjective views of the executive director.