On October 17, 2018, in a short but interesting decision of the Ontario Court of Appeal in Fontaine v. Canada (Attorney General), 2018 ONCA 832, Sharpe J.A. faced down the “unprecedented” scenario “for a judge to purport to rescind an order after it has been made, appealed and stayed, thereby effectively ending the appeal and replacing it with another process.” Indeed, counsel was “unable to identify any such precedent” for a judge doing so.
The decision emanates from the continuing saga of administering the Indian Residential School Settlement Agreement (“IRSSA”), the largest class action settlement in Canadian history to date. In early September 2018, the lower court “Eastern Administrative Judge”, on his own motion and without notice to any party, issued a direction prohibiting the Chief Adjudicator for the Independent Assessment Process from continued participation in three ongoing appeals. The Chief Adjudicator appealed this direction and moved for a stay pending appeal. The appeal was scheduled for hearing in November 2018. However, the Eastern Administrative Judge then issued a new direction, again on his own motion and without notice to any party, which rescinded the prior direction under appeal and, among other things, directed that a new “full hearing with due process” for the Chief Adjudicator would be conducted before a special panel with extra-jurisdictional judges, with the benefit of amicus curiae. This new direction was then appealed, again requesting a stay pending its hearing.
As a result, Sharpe J.A. was presented with the issue of how to properly administer the two proposed appeals in such novel procedural circumstances. In resolving the various issues, he notably took the following positions:
- For jurisdictional purposes, the second direction was deemed a “final order” so as to ground its appeal in the Court of Appeal: “If the Second Direction rescinds the First Direction, it has the effect of ending the appeal from the First Direction, as the Chief Adjudicator cannot appeal from an order that is no longer in effect.” Moreover, since the second direction removed some of the issues raised in its appeal to a new, special panel “outside the jurisdiction of the Ontario courts”, Sharpe J.A. endorsed the principle that “[a]n order that finally determines the forum for the dispute is a final order for the purposes of appeal, even though the substantive issues remain to be determined by the court or tribunal held to have jurisdiction”.
- Since the second direction at issue was made without notice and without a hearing, it was “arguable that it was made in violation of the principles of procedural fairness”.
- It was also “arguable that the Second Direction was issued in violation of the functus officio principle”, the purpose of which is “to allow finality of judgments from courts which are subject to appeal” and provide litigants a “stable basis from which to launch an appeal”. In short, this principle is engaged when the court’s duty or authority on the matter has come to an end.
- It was similarly “arguable that the Second Direction amounts to an attempt to short-circuit the appeal to this court from the First Direction”, rendering the appeal of the first direction “largely moot”. This was not to be countenanced.
- On the second direction’s novel creation of the special panel to hear the dispute, Sharpe J.A. obviously saw some potential errors, both substantively and procedurally. As he put it: “it is arguable that a panel of two judges from different provincial and territorial superior courts should be avoided where the issue is hotly contested, as it is in the present case. What happens if the two judges disagree? Whether or not they agree, are there two appeals, one to each provincial or territorial court of appeal? If not, how is it to be determined to which court the appeal lies? What happens if there are two appeals leading to conflicting results?”
- Ultimately, the two competing appeals were consolidated by Sharpe J.A. to be heard together at the November 2018 date. He stayed the second direction nunc pro tunc from the date it was issued.
- When ordering the stay pending the consolidated appeal, Sharpe J.A. was clear that “irreparable harm could flow from allowing two parallel proceedings to unfold at the same time”. He stated “[q]uite apart from the added cost of duplicative proceedings, there is a clear risk of inconsistent results.” This would cause confusion to the IRSSA administration process, thereby causing harm to it. Moreover, “[c]onflicting results would also cause harm by bringing the administration of justice into disrepute.”
This seemingly short decision in fact provides many things. For example, it provides insight to the chronic dispute of ‘final vs. interlocutory’ orders in such unique circumstances. It provides a breath of life to age-old doctrines like functus officio, mootness, abuse of process, and nunc pro tunc in the modern operation of appeals. It provides insight to the necessity of stays to thwart irreparable harm when faced with competing, parallel appeals threatening inconsistent results. And perhaps most importantly, it places front and center the Court of Appeal’s robust case-management potential when resolving novel procedural issues concerning the proper administration of justice and the sequencing of appeals.
Fontaine v. Canada (Attorney General), 2018 ONCA 832
Date of Decision: October 17, 2018