Nov 9, 2020

COURT OF APPEAL SUMMARIES (November 2 – November 6, 2020)

Fontaine v. Canada (Attorney General), 2020 ONCA 688 (CanLII)

[Fairburn A.C.J.O., Rouleau and Miller JJ.A.]


F.K. Brunning and M. Swinwood, for the appellants E.M., St. Anne’s IAP Claimant T-00185, St. Anne’s IAP Claimant S20774, and St. Anne’s IAP Claimant S-16753

C. Coughlan and B. Thompson, for the respondent Attorney General of Canada

S. Wuttke, for the respondent Assembly of First Nations

D. Schulze, for the respondent Independent Counsel

E. Merchant, for the respondent Merchant Law Group

E. Garfin, for the intervener Attorney General of Ontario

Keywords: Civil Procedure, Class Proceedings, Indian Residential School System Settlement Agreement, Standard of Review, Baxter v. Canada (Attorney General) (2206) 83 OR (3d) 481 (SC), Onion Lake Cree Nation v Stick, 2020 SKCA 101, J.W. v Canada (attorney General), 2019 SCC 20, BG Checo Internation Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 SCR 12


The appellants are class members of the Indian Residential School Settlement Agreement (“IRSSA”), a national class action settlement agreed to settle the myriad of claims that arose from the residential school system. The IRSSA broke the national class down into various sub-classes, based on the province in which any given complainant lived at the time of the settlement, so as to divide jurisdiction between the provinces and territories party to the settlement. The IRSSA created two different mechanisms by which a complainant can be compensated, one of which, the Independent Assessment Process (“IAP”), is under consideration in this appeal. As part of the administration of the IRSSA, nine different superior courts across Canada approved the IRSSA, and in doing so, also approved a Court Administration Protocol (“CAP”) that was to govern the process for any Request for Directions (“RFD”) by a party.

The CAP provides that in each jurisdiction, a judge of the superior court will serve as the Supervising Judge for that jurisdiction, and of the nine Supervising Judges, two will become Administrative Judges (one for the Eastern parties and one for the Western Parties). The CAP is used to determine which Supervising Judge has jurisdiction to hear an RFD matter. Paragraph 5 of the CAP provides:

5. Should a hearing be required, the Administrative Judges will make such direction and determine the jurisdiction in which the hearing should be held. In making this determination the Administrative Judges will be guided by the following principles:

(a) Where the issue(s) involve relief for a particular class member or particular class, the hearing will be directed to the supervising court with jurisdiction over the class member or class pursuant to the terms of the Agreement and the Approval Orders.

(b) Where the issue(s) affect more than one jurisdiction, but not all, the hearing will be directed to a supervising court in one of the affected jurisdictions.

(c) Where the issue(s) affect all jurisdictions, the hearing may be directed to any court supervising the Agreement. …

(f) In applying these principles, the Administrative Judges may also be guided by any other consideration that he or she deems to be appropriate in the circumstances.

Since the IRSSA was signed, the appellants have filed two RFDs to require the respondent to produce various documents. The appellants were successful on both RFDs, but the respondent had still not produced the necessary documents. On the previous RFDs, the Eastern and Administrative judge (from Ontario) determined that the Supervising Judge of Ontario (himself) would have jurisdiction.

The appellants filed a third RFD to seek compliance with the first two. In this case, the Supervising Judge (still the same person who was also the Eastern Administrative Judge) recused himself from hearing the RFD. The Eastern Administrative Judge assigned the RFD to the Supervising Judge of British Columbia, who is also the Western Administrative Judge. The Eastern Administrative Judge relied on paragraph 5(f) of the CAP to support his assignment of the case and cited judicial economy and the benefit of having an expert (the Western Administrative Judge) hear the RFD as the residual considerations that necessitated the assignment.

The appellants appeal the judge’s order to assign the case to the British Columbia Supervising Judge, asserting that the judge should have referred it to the Ontario Superior Court of Justice, where, because of his recusal as the Supervising Judge, the RFD would have been heard by a different judge of the court.


(1) What is the standard of review?

(2) Did the Eastern Administrative Judge err in referring the RFD to the British Columbia Supervising Judge?


Appeal allowed.


1. What is the Standard of Review?

Correctness. Before addressing the issue, the Court of Appeal first discussed the standard of review to be applied on the appeal. The Court of Appeal held that the correct standard of review correctness and gave several reasons to support this holding. First, the CAP is an appendix to a court order. When interpreting a court order, courts treat this much the same as interpreting a statute. Interpreting the CAP therefore involves a question of law and so correctness is the standard of review. Secondly, the judge’s interpretation of the CAP and decision to refer the RFD is a question of jurisdiction, which is also reviewable on a correctness standard.

2. Did the Eastern Administrative Judge err in referring the RFD?


The appeal turned on the interpretation of paragraph 5 of the CAP. In his decision, the Eastern Administrative Judge relied almost exclusively on paragraph 5(f). While the Court of Appeal found that the considerations he cited under 5(f) were important, 5(f) was not applicable to this appeal and thus the Eastern Administrative Judge erred.

The Court of Appeal then went on to interpret paragraph 5 in the way it should have been. The Court looked at paragraph 5 as a whole and found that paragraph 5(a) was mandatory, while the others were permissive. Particularly, 5(a) says “relief for a particular class member or particular class, the hearing will be directed to the supervising court with jurisdiction over the class member or class pursuant to the terms of the Agreement and the Approval Orders” (emphasis added). In contrast, the other parts of paragraph 5 use the word “may”, which is permissive and discretionary. The other paragraphs also refer to “a supervising court” rather than “the supervising court”, which again highlights the mandatory nature of 5(a).

The appellants are all residents of Ontario, and their claims related only to one Residential School which was in Ontario. Thus, the appellants RFD fell squarely within the terms of paragraph 5(a), which mandated that the Ontario Superior Court of Justice should hear the RFD. By referring to 5(f), the Eastern Administrative Judge incorrectly interpreted 5(a) and used permissive language to override mandatory language. This was an error of law and so the Court of Appeal allowed the appeal.

Before disposing of the appeal, the Court of Appeal went on to consider and dismiss some of the respondent’s submissions in obiter. The respondent argued that: i) paragraph 5 of the CAP contains guiding principles, not mandatory rules; ii) that the French translation of the CAP makes 5(f) more than permissive or discretionary; iii) that paragraph 7 of the CAP is entirely determinative of the appeal; and iv) that the appellants attorned to the jurisdiction of the British Columbia Supervising Judge by appearing before it on a different RFD. The Court of Appeal dismissed all of these arguments, and having already decided that the Eastern Administrative Judge committed an error of law, allowed the appeal.

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