Canada (Attorney General) v. Fontaine, 2017 SCC 47 – Civil procedure – Class proceedings – Settlement

On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 241) substantially affirming a decision of Perell J. (2014 ONSC 4585).

From the 1860s to the 1990s, more than 150,000 First Nations, Inuit, and Métis children were required to attend Indian Residential Schools operated by religious organizations and funded by the Government of Canada. Thousands of these children were abused physically, emotionally, and sexually while at residential schools. A number of individual and class actions were brought by survivors of residential schools. In 2006, an agreement was reached and class actions in nine provinces and territories were consolidated into a single action. The Indian Residential Schools Settlement Agreement (“IRSSA”), which is a comprehensive settlement of that class action, sought to achieve a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools and to promote healing, education, truth and reconciliation and commemoration by, among other things, financially compensating former students of residential schools.

The IRSSA provided two forms of financial compensation to former students of residential schools. First, the Common Experience Payment provided eligible claimants with financial compensation based on the amount of time they were at the schools. Second, former students who were victims of abuse and wrongful acts resulting in serious psychological consequences could also bring a claim under the Independent Assessment Process (“IAP”). To initiate a claim under the IAP, claimants must submit an application form to the Indian Residential Schools Adjudication Secretariat, which entails disclosure by claimants of acutely sensitive particulars for examination by an adjudicator. This information is recorded in application forms, hearing transcripts, medical reports, reasons for decisions and other documents (collectively, the “IAP Documents”), copies of which are held by the Government of Canada.

During the IAP, the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat and the Truth and Reconciliation Commission (“TRC”) brought requests for directions to the Ontario Superior Court of Justice on the disposition of the IAP documents at the conclusion of the IAP and, if necessary, on the development of a notice program to inform claimants of the possibility of voluntarily archiving some of their IAP Documents at the National Centre for Truth and Reconciliation.

The supervising judge found that the IAP records must be destroyed following a 15-year retention period, during which individual IAP claimants could elect to have the records in their own file preserved. This order was substantially upheld by the majority of the Ontario Court of Appeal. The Attorney General of Canada appeals to this Court, arguing that the IAP Documents are “under the control of a government institution” within the meaning of the Access to Information Act, the Privacy Act and the Library and Archives of Canada Act, and that the supervising judge had no jurisdiction to order their destruction.

Held (7-0): The appeal should be dismissed.

Judges of the provincial and territorial superior courts who certified the class action and approved the IRSSA were designated as supervising judges, and play a vital role under the IRSSA. They have administrative and supervisory jurisdiction over the implementation and administration of the IRSSA and can, among other things, hear requests for directions. In this case, the supervising judge correctly found that he had authority to make orders as to the disposition of the IAP Documents. The courts’ supervisory role in implementing the IRSSA allows them to make orders regarding the disposition of the IAP documents regardless of whether or not they are government records.

The supervising judge concluded, without palpable and overriding error, that the IRSSA allowed for the destruction of the IAP Documents. Both the text of the IRSSA and the surrounding circumstances support the supervising judge’s interpretation. The IRSSA’s express terms provided that the IAP Documents would be treated as highly confidential, subject to the very limited prospect of disclosure during a retention period, and then be destroyed. The main components to the IRSSA include provisions bearing on the IAP and on the TRC in Schs. D and N. Schedule D, which deals with the IAP, does not expressly state whether federal legislation will apply to documents created or uncovered by the IAP, but it does refer to the intended treatment of various types of information and documents. Schedule N, which details the mandate and process of the TRC, provides that the truth and reconciliation process is committed to the principle of voluntariness with respect to individuals’ participation. The supervising judge’s findings that the negotiators of the IRSSA intended the IAP to be a confidential and private process, that claimants and perpetrators relied on the confidentiality assurances and that, without such assurances, the IAP could not have functioned were inescapable.

The references to federal access, privacy, and archiving legislation in the “Guide to the Independent Assessment Process Application” should not be given interpretive weight. It does not form part of the IRSSA, and it prominently states that, in the event of any differences between the Guide and Sch. D, the official document will prevail. Moreover, its provisions regarding privacy seem completely unmoored from the text of Sch. D and were apparently reproduced from a similar document used in the former alternative dispute resolution process. The supervising judge therefore committed no error by omitting to import the Guide’s references to federal access, privacy, and archiving legislation into the IRSSA. The application of this legislation to the IAP Documents would clearly run counter to the principles of confidentiality and voluntariness upon which the IAP was founded.

Finally, the order crafted by the supervising judge was an appropriate exercise of his discretionary power to administer the IRSSA. His order, as modified by the Court of Appeal, strikes a balance between preserving confidentiality and the need to memorialize and commemorate, all the while respecting the choice of survivors to share their stories, and charts an appropriate course between potentially unwanted destruction and potentially injurious preservation. During the 15‑year retention period, claimants may choose to have their IAP Documents preserved and archived, and that choice will be brought to their attention through a notice program administered by the Chief Adjudicator. While this order may be inconsistent with the wishes of deceased claimants who were never given the option to preserve their records, the destruction of records that some claimants would have preferred to have preserved works a lesser injustice than the disclosure of records that most expected never to be shared.

Reasons for judgment: Brown and Rowe JJ. (McLachlin C.J. and Karakatsanis, Wagner, Gascon and Côté JJ. concurring)

Neutral Citation: 2017 SCC 47

Docket Number: 37037