Canada (Attorney General) v. Fontaine

Canada (Attorney General) v. Fontaine
Collection
Supreme Court Judgments
Date
2017-10-06
Neutral citation
2017 SCC 47
Report
[2017] 2 SCR 205
Case number
37037
Judges
McLachlin, Beverley; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Ontario
Notes
SCC Case Information: 37037
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205
Appeal Heard: May 25, 2017
Judgment Rendered: October 6, 2017
Docket: 37037
Between:
Attorney General of Canada
Appellant
and
Larry Philip Fontaine in his personal capacity and in his capacity as the executor of the estate of Agnes Mary Fontaine, deceased, et al.
Respondents
- and -
Privacy Commissioner of Canada, Coalition to Preserve Truth and Information Commissioner of Canada
Interveners
Coram: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Joint Reasons for Judgment:
(paras. 1 to 64)
Brown and Rowe JJ. (McLachlin C.J. and Karakatsanis, Wagner, Gascon and Côté JJ. concurring)
Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205
Attorney General of Canada Appellant
v.
Larry Philip Fontaine in his personal capacity and
in his capacity as the executor of the estate of Agnes
Mary Fontaine, deceased, Michelline Ammaq, Percy Archie,
Charles Baxter Sr., Elijah Baxter, Evelyn Baxter,
Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster,
Rhonda Buffalo, Ernestine Caibaiosai‑Gidmark,
Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson,
Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine
in his personal capacity and in his capacity as the executor
of the estate of Agnes Mary Fontaine, deceased,
Vincent Bradley Fontaine, Dana Eva Marie Francey,
Peggy Good, Fred Kelly, Rosemarie Kuptana,
Elizabeth Kusiak, Theresa Larocque, Jane McCullum,
Cornelius McComber, Veronica Marten,
Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey,
Camble Quatell, Alvin Barney Saulteaux, Christine Semple,
Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic,
Helen Winderman, Adrian Yellowknee,
Presbyterian Church in Canada, General Synod
of the Anglican Church of Canada, United Church of Canada,
Board of Home Missions of the United Church of Canada,
Women’s Missionary Society of the Presbyterian Church,
Baptist Church in Canada, Board of Home Missions
and Social Services of the Presbyterian Church in Bay,
Canada Impact North Ministries of the Company
for the Propagation of the Gospel in New England
(also known as the New England Company),
Diocese of Saskatchewan, Diocese of the Synod of Cariboo,
Foreign Mission of the Presbyterian Church in Canada,
Incorporated Synod of the Diocese of Huron,
Methodist Church of Canada, Missionary Society
of the Anglican Church of Canada, Missionary Society
of the Methodist Church of Canada (also known as
the Methodist Missionary Society of Canada),
Incorporated Synod of the Diocese of Algoma,
Synod of the Anglican Church of the Diocese of Quebec,
Synod of the Diocese of Athabasca, Synod of the Diocese
of Brandon, Anglican Synod of the Diocese of British Columbia,
Synod of the Diocese of Calgary, Synod of the Diocese
of Keewatin, Synod of the Diocese of Qu’Appelle,
Synod of the Diocese of New Westminster, Synod of the Diocese
of Yukon, Trustee Board of the Presbyterian Church in Canada,
Board of Home Missions and Social Service of the Presbyterian
Church of Canada, Women’s Missionary Society
of the United Church of Canada, Sisters of Charity,
a Body Corporate also known as Sisters of Charity
of St. Vincent de Paul, Halifax, also known as
Sisters of Charity Halifax, Roman Catholic Episcopal
Corporation of Halifax, Soeurs de Notre-Dame‑Auxiliatrice,
Soeurs de St-François D’Assise, Institut des Soeurs
du Bon Conseil, Soeurs de Saint‑Joseph de Saint‑Hyacinthe,
Soeurs de Jésus‑Marie, Soeurs de l’Assomption de la Sainte Vierge,
Soeurs de l’Assomption de la Sainte Vierge de l’Alberta,
Soeurs Missionnaires du Christ‑Roi,
Soeurs de la Charité de St-Hyacinthe, Oeuvres Oblates de l’Ontario,
Résidences Oblates du Québec, Corporation Épiscopale Catholique
Romaine de la Baie James (the Roman Catholic Episcopal
Corporation of James Bay), Catholic Diocese of Moosonee,
Soeurs Grises de Montréal/Grey Nuns of Montréal,
Sisters of Charity (Grey Nuns) of Alberta,
Soeurs de la Charité des T.N.-O., Hôtel‑Dieu de Nicolet,
Grey Nuns of Manitoba Inc. — Soeurs Grises du Manitoba Inc.,
Corporation Épiscopale Catholique Romaine de la Baie d’Hudson —
Roman Catholic Episcopal Corporation of Hudson’s Bay,
Missionary Oblates — Grandin Province,
Oblats de Marie Immaculée du Manitoba,
Archiepiscopal Corporation of Regina,
Sisters of the Presentation, Sisters of St. Joseph of Sault
Ste. Marie, Sisters of Charity of Ottawa,
Oblates of Mary Immaculate — St. Peter’s Province,
Sisters of Saint Ann, Sisters of Instruction of the Child Jesus,
Benedictine Sisters of Mt. Angel Oregon,
Pères Montfortains, Roman Catholic Bishop of Kamloops,
Corporation Sole, Bishop of Victoria, Corporation Sole,
Roman Catholic Bishop of Nelson, Corporation Sole,
Order of the Oblates of Mary Immaculate in the Province
of British Columbia, Sisters of Charity of Providence
of Western Canada, Corporation Épiscopale Catholique Romaine
de Grouard, Roman Catholic Episcopal Corporation of Keewatin,
Corporation Archiépiscopale Catholique Romaine
de St‑Boniface, Missionnaires Oblates Soeurs de St-Boniface —
Missionary Oblates Sisters of St. Boniface,
Roman Catholic Archiepiscopal Corporation of Winnipeg,
Corporation Épiscopale Catholique Romaine de Prince Albert,
Roman Catholic Bishop of Thunder Bay,
Immaculate Heart Community of Los Angeles CA,
Archdiocese of Vancouver — Roman Catholic Archbishop
of Vancouver, Roman Catholic Diocese of Whitehorse,
Catholic Episcopal Corporation of Mackenzie‑Fort Smith,
Roman Catholic Episcopal Corporation of Prince Rupert,
Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc.,
Mt. Angel Abbey Inc., National Centre for Truth and Reconciliation,
Assembly of First Nations, Independent Counsel,
Inuit Representatives and Chief Adjudicator of the Indian
Residential Schools Adjudication Secretariat Respondents
and
Privacy Commissioner of Canada,
Coalition to Preserve Truth and
Information Commissioner of Canada Interveners
Indexed as: Canada (Attorney General) v. Fontaine
2017 SCC 47
File No.: 37037.
2017: May 25; 2017: October 6.
Present: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Civil procedure — Class proceedings — Settlement — Administration — Settlement agreement resolved class actions by Aboriginal persons who attended residential schools — Agreement provided for Independent Assessment Process for serious claims of abuse — Two parties to settlement agreement requested directions from supervising judge as to post-decision disposition of records generated by Independent Assessment Process — Whether records are court records or government records subject to federal privacy, access to information, and archiving legislation — Whether supervising judge erred in concluding that settlement agreement allowed for destruction of records — Whether supervising judge’s order that records must be destroyed following 15-year retention period was appropriate.
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: 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.
Cases Cited
Referred to: Baxter v. Canada (Attorney General) (2006), 83 O.R. (3d) 481; Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86; Fontaine v. Canada (Attorney General), 2013 ONSC 684, 114 O.R. (3d) 263; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Coco v. A.N. Clark (Engineers) Ltd., [1969] R.P.C. 41; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162; R. v. Rose, [1998] 3 S.C.R. 262; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92, 359 D.L.R. (4th) 713; P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629; Balogun v. Pandher, 2010 ABCA 40, 474 A.R. 258; Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801; Reza v. Canada, [1994] 2 S.C.R. 394; Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A‑1, s. 4 .
Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12.
Library and Archives of Canada Act, S.C. 2004, c. 11 , preamble, ss. 2 , 12.
Privacy Act, R.S.C. 1985, c. P‑21, ss. 3 “personal information”, 7 to 10, 8(2)(j), 12.
Treaties and Agreements
Indian Residential Schools Settlement Agreement (2006), preamble, arts. 4.06(g), 5.02, 7.01, Sch. D, arts. II, III(o), App. II, items (i), (iv), VII, VIII, Sch. N, arts. 1, 2(c), 4(b), 11.
Authors Cited
Hall, Geoff R. Canadian Contractual Interpretation Law, 2nd ed. Markham, Ont.: LexisNexis, 2012.
Indian Residential Schools Adjudication Secretariat. Guide to the Independent Assessment Process Application, updated April 4, 2013 (online: http://www.iap-pei.ca/media/information/publication/pdf/pub/iapg-v3.2-20130404-eng.pdf; archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC47_1_eng.pdf).
The Right Honourable Stephen Harper on behalf of the Government of Canada. “Statement of Apology to former students of Indian Residential Schools”, Ottawa, June 11, 2008 (online: https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/rqpi_apo_pdf_1322167347706_eng.pdf; archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC47_2_eng.pdf).
APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J., Sharpe and MacFarland JJ.A.), 2016 ONCA 241, 130 O.R. (3d) 1, [2016] 3 C.N.L.R. 72, 397 D.L.R. (4th) 243, 346 O.A.C. 321, [2016] O.J. No. 1658 (QL), 2016 CarswellOnt 4938 (WL Can.), substantially affirming a decision of Perell J., 2014 ONSC 4585, 122 O.R. (3d) 1, [2014] 4 C.N.L.R. 72, [2014] O.J. No. 3638 (QL), 2014 CarswellOnt 10756 (WL Can.). Appeal dismissed.
Christopher Rupar and Alexander Pless, for the appellant.
Janine L. Lavoie‑Harding, David M. Stack, Q.C., and C. Kelsey O’Brien, for the respondents Sisters of Charity, a Body Corporate also known as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Oeuvres Oblates de l’Ontario, Résidences Oblates du Québec, Soeurs Grises de Montréal/Grey Nuns of Montréal, Sisters of Charity (Grey Nuns) of Alberta, Soeurs de la Charité des T.N.-O., Hôtel‑Dieu de Nicolet, Grey Nuns of Manitoba Inc. — Soeurs Grises du Manitoba Inc., Missionary Oblates — Grandin Province, Oblats de Marie Immaculée du Manitoba, Oblates of Mary Immaculate — St. Peter’s Province, Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, Order of the Oblates of Mary Immaculate in the Province of British Columbia, Sisters of Charity of Providence of Western Canada and Roman Catholic Archiepiscopal Corporation of Winnipeg.
Raymond Doray and Pierre‑L. Baribeau, for the respondents Soeurs de Notre-Dame-Auxiliatrice, Soeurs de St-François D’Assise, Institut des Soeurs du Bon Conseil, Soeurs de Saint‑Joseph de Saint‑Hyacinthe, Soeurs de Jésus‑Marie, Soeurs de l’Assomption de la Sainte Vierge, Soeurs de l’Assomption de la Sainte Vierge de l’Alberta, Soeurs Missionnaires du Christ‑Roi and Soeurs de la Charité de St‑Hyacinthe.
Joanna Birenbaum, Naomi Andrew and Lynne Hiebert, for the respondent National Centre for Truth and Reconciliation.
Stuart Wuttke, Julie McGregor and Kathleen Mahoney, Q.C., for the respondent Assembly of First Nations.
Peter R. Grant, Diane Soroka and Sandra Staats, for the respondent Independent Counsel.
Hugo Prud’homme, for the respondent Inuit Representatives.
Joseph J. Arvay, Q.C., Catherine J. Boies Parker and Susan E. Ross, for the respondent Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat.
No one appeared for the other respondents.
Written submissions only by Barbara McIsaac, Q.C., Kate Wilson, Regan Morris and James Nowlan, for the intervener Privacy Commissioner of Canada.
Christopher G. Devlin, Nicole Bresser and John Gailus, for the intervener Coalition to Preserve Truth.
Richard Dearden and Adam Zanna, for the intervener Information Commissioner of Canada.
The judgment of the Court was delivered by
Brown and Rowe JJ. —
I. Introduction
[1] 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. As Canada has acknowledged, this system was intended to “remove and isolate children from the influence of their homes, families, traditions and culture” (“Statement of Apology to former students of Indian Residential Schools” of the Right Honourable Stephen Harper on behalf of Canada, June 11, 2008 (online)). Thousands of these children were abused physically, emotionally, and sexually while at residential schools.
[2] Under the Indian Residential Schools Settlement Agreement (2006) (“IRSSA”), survivors of residential schools could seek compensation through the specially designed Independent Assessment Process (“IAP”).[1] This entailed disclosure by claimants of acutely sensitive particulars — both of the abuse suffered, and of its consequences — 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 Canada.
[3] This appeal concerns the fate of the digital and physical records generated by this process. In particular, this Court must determine whether the IAP Documents should be destroyed, or retained and eventually archived at Library and Archives Canada. In response to requests for directions to the Ontario Superior Court of Justice from various parties to the IRSSA, the supervising judge found that these 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 now appeals that result to this Court.
[4] We would dismiss the appeal and uphold the supervising judge’s order as varied by the Court of Appeal. In our view, the supervising judge’s order is not, as the Attorney General of Canada claims, precluded by the operation of the Library and Archives of Canada Act, S.C. 2004, c. 11 , or any other legislation. Moreover, it was an appropriate exercise of the supervising judge’s discretionary power to administer the IRSSA.
II. Overview of Facts and Proceedings
A. Background
[5] In the late 1990s and early 2000s, a number of individual and class actions were brought by survivors of residential schools. In November 2003, the Government of Canada established a voluntary alternative dispute resolution (“ADR”) process to compensate survivors. In 2006, an agreement was reached and class actions in nine provinces and territories were consolidated into a single action.[2] The IRSSA is a comprehensive settlement of that class action, and was the product of extensive negotiations among the plaintiffs and their representatives, the Government of Canada, and various religious organizations which had operated these schools. It seeks to achieve a “fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools” and aims to promote “healing, education, truth and reconciliation and commemoration” (IRSSA, preamble), by:
(1) financially compensating former students of residential schools;
(2) establishing a truth and reconciliation commission;
(3) providing an endowment to healing programs; and
(4) resolving all outstanding litigation regarding residential schools.
[6] Compensation under the IRSSA may take two forms. First, the Common Experience Payment (“CEP”) provides $10,000 to eligible claimants who resided at an Indian Residential School for one school year or part thereof, and an additional $3,000 for every additional year or part thereof (IRSSA, art. 5.02). The second manner by which claimants may be compensated — and this is the process giving rise to this appeal — is through the IAP. It allows former students who were survivors of sexual abuse, serious physical abuse, and other wrongful acts resulting in serious psychological consequences to bring claims forward, in addition to any claim they might bring under the CEP. The deadline for applying to the IAP was September 19, 2012. As of June 2014, 37,716 IAP claims had been initiated, of which 25,800 had been resolved.
[7] To initiate a claim under the IAP, a claimant must submit an application form to the Indian Residential Schools Adjudication Secretariat. The process then unfolds as described by the Ontario Superior Court of Justice:
The IAP begins with an application that appears to serve functions similar to a statement of claim. In the application form, the Claimant provides details of the wrongdoing with dates, places, times, and the Claimant provides information to identify the alleged perpetrator. In the application, the Claimant provides a Narrative in the first person and outlines his or her request for compensation in accordance with the IRSSA. Depending on the nature of the claim for compensation, certain documents must be provided by a Claimant with the application.
(Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86, at para. 76)
[8] As found by the supervising judge, “for a claimant to complete the application form, he or she will disclose the most private and most intimate personal information, including a first-person narrative outlining his or her request for compensation” (2014 ONSC 4585, 122 O.R. (3d) 1, at para. 176). Applications are then forwarded to Canada and to the church entity that operated the residential school in question. If the claim is not settled at this stage, it will proceed to a hearing before an adjudicator, supervised by the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat. The Settlement Agreement Operations Branch (“SAO”), a branch within Aboriginal Affairs and Northern Development Canada (“AANDC”), represents Canada as a defendant to these claims. The Secretariat’s website at the time of the requests for directions represented that IAP hearings are private: “The hearing is held in private. The public and the media are not allowed to attend. Each person who attends the hearing must sign a confidentiality agreement. This means that what is said at the hearing stays private” (supervising judge’s reasons, at para. 184).
[9] IAP hearings serve two purposes: testing the credibility of the claimant and assessing the harm suffered. After the hearing, the adjudicator produces a decision outlining key factual findings and, generally, the adjudicator must outline the rationale for finding or not finding that the claimant is entitled to compensation.
[10] It is the post-decision disposition of the records generated by the IAP — the IAP Documents — that is at issue here. As explained by the supervising judge, the IAP Documents comprise seven categories: “(1) applications submitted by the claimants; (2) mandatory documents containing private personal information; (3) witness statements; (4) documentary evidence produced by the parties; (5) transcripts and audio recordings of the hearings; (6) expert and medical reports; and (7) decisions of the adjudicators and any appeals” (supervising judge’s reasons, at para. 205). The Secretariat and the SAO both currently possess thousands of digital and physical copies of these various records pertaining to more than 37,000 claims made under the IAP.
[11] As already noted, beyond its compensation function, the IRSSA also aims to commemorate and memorialize the residential schools system. Article 7.01 of the IRSSA established the Truth and Reconciliation Commission (“TRC”). The TRC is tasked with “creat[ing] a historical record of the residential school system and ensur[ing that] its legacy is preserved and made accessible to the public for future study and use” (supervising judge’s reasons, at para. 5). The National Centre for Truth and Reconciliation (“NCTR”) was to archive and store the records collected by the TRC, along with the historical records regarding residential schools. The tension between that mandate of commemoration and memorialization, and the privacy which IAP claimants were promised, lies at the heart of this appeal.
B. Judicial History
(1) Ontario Superior Court of Justice — 2014 ONSC 4585, 122 O.R. (3d) 1
[12] The Chief Adjudicator and the TRC brought requests for directions to the Ontario Superior Court of Justice on the disposition of the IAP Documents 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 NCTR.
[13] The TRC argued that the IAP Documents were government records under its control, and therefore subject to the Library and Archives of Canada Act . Canada and the NCTR generally supported the TRC’s position, arguing that the IAP Documents are essential to preserving the historical record of the residential school abuses. The Chief Adjudicator, however, submitted that the IAP Documents were court records, not government records. The intention underlying the IRSSA was that the IAP Documents should be destroyed after a retention period to allow for voluntary archival by the claimant. This call for destruction, following a retention period, was generally echoed by the Assembly of First Nations, the Sisters of St. Joseph of Sault Ste. Marie, the Twenty-Four Catholic Entities, the Nine Catholic Entities, and the Independent Counsel.
[14] The supervising judge, Perell J., began by reviewing the principles of contractual interpretation applicable to the IRSSA, which entails identifying the intent of the parties at the time they negotiated the contract. He adopted the principles of interpretation applicable to the IRSSA as stated in Fontaine v. Canada (Attorney General), 2013 ONSC 684, 114 O.R. (3d) 263, at para. 68, that the text of the agreement must be read as whole, having regard to the plain meaning of the words used as well as the context provided by the circumstances existing at the time the IRSSA was created. Further, he observed that the IRSSA, while not a treaty, “is at least as important as a treaty” and its interpretation must be informed by the honour of the Crown (para. 88).
[15] On balance, the supervising judge concluded that the court should exercise its jurisdiction to order destruction of the IAP Documents. He identified three reasons for doing so.
[16] First, as a matter of contractual interpretation, destruction is what the parties had bargained for. The IAP was intended to be a confidential process, and both claimants and alleged perpetrators had relied on that assurance of confidentiality in deciding to participate. Archiving the IAP Documents at Library and Archives Canada would not conform to the “high degree of confidentiality that the parties bargained for” (para. 317). Rather, the IRSSA provided that the IAP Documents, including Canada’s copies thereof, would be destroyed following a retention period, during which period they would be governed by the Access to Information Act, R.S.C. 1985, c. A-1 , and the Privacy Act, R.S.C. 1985, c. P-21 . In the alternative, destruction of the IAP Documents amounted to an implied term in the IRSSA, because it was necessary to give the agreement “operative efficiency” (para. 325).
[17] Second, the IAP Documents are subject to an implied undertaking, which the court can enforce by ordering their destruction. Notwithstanding Canada’s possession of some IAP Documents, the supervising judge found that the court had jurisdiction to make an order in rem that the IAP Documents be destroyed, subject to the rights of claimants to archive them at the NCTR, because “[t]he IAP Documents are a product of an alternative dispute resolution mechanism” (para. 335). Relying on his analysis in Fontaine, 2014 ONSC 283, the supervising judge held that the IAP was a form of litigation to which the implied undertaking applied. In his view, this implied undertaking restricted Canada from providing its IAP Documents to the TRC, the NCTR, or Library and Archives Canada, and the court could order destruction of all the IAP Documents to enforce the implied undertaking.
[18] Third, the IAP Documents are subject to the law governing breach of confidence. “A breach of confidence occurs when a confider discloses confidential information to a confidant in circumstances in which there is an obligation of confidentiality and the confidant misuses the confidential information” (para. 357, relying on Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, and Coco v. A.N. Clark (Engineers) Ltd., [1969] R.P.C. 41 (Ch.)). The supervising judge found that Canada’s agreement to transfer the IAP Documents to Library and Archives Canada amounted to a breach of confidence, and the appropriate remedy was an order providing for destruction after a 15-year retention period.
[19] Finally, the supervising judge concluded that his destruction order should be made subject to a retention period. This would allow for the development and implementation of a notice program, conducted by the TRC or the NCTR, to advise IAP claimants of the rights they have under the IRSSA to share their stories with the NCTR.
(2) Court of Appeal for Ontario — 2016 ONCA 241, 130 O.R. (3d) 1
[20] On appeal, the Sisters of St. Joseph of Sault Ste. Marie, the Twenty-Two Catholic Entities, and the Nine Catholic Entities, supported by the Independent Counsel, argued that the IRSSA expressly provides that archiving requires their consent, and not just that of a claimant. Canada, on cross-appeal, supported by the TRC and NCTR, argued that it controls the IAP Documents, which are accordingly subject to federal privacy, access to information, and archiving legislation. Independent Counsel, in addition to supporting the Catholic Entities’ submission regarding consent, argued that the notice program should not be run by either the TRC or NCTR, but by the Chief Adjudicator. Further, the retention period for the IAP Documents should be lowered to 2 years from 15 years. Finally, the destruction order should include documents from the ADR process.
[21] Writing for the majority, Strathy C.J. dismissed both the appeal and cross-appeal. Nonetheless, he varied Perell J.’s order to give effect to the Independent Counsel’s submissions on the notice program (that it should be administered by the Chief Adjudicator) and on the inclusion of the ADR documents.
[22] Regarding the appeal, the majority concluded that the IAP Documents may be archived with the consent of the claimant alone. Schedule D of the IRSSA gives claimants the option of having a transcript from their hearing deposited in an archive for that purpose. The IRSSA permits survivors to disclose their own experiences, despite any claims that others may make with respect to confidentiality and privacy. Requiring consent of other “individuals affected” for archiving of the IAP Documents would “eviscerate” claimants’ IRSSA rights to disclose their complaints, to have their evidence archived only with their consent, and to exercise control over their IAP Documents (paras. 111 and 114; Sch. N, art. 11). “By allowing claimants to archive their IAP transcripts, the IRSSA merely provides claimants with an alternative and expeditious means of preserving their stories as part of the TRC process” (para. 120).
[23] The majority further concluded the notice plan fell within the supervising judge’s administrative discretion, as it was not a material amendment to the IRSSA. Schedule D expressly contemplates that claimants “will . . . be given the option of having the transcript deposited in an archive developed for the purpose”. “[T]he IRSSA gives claimants the right to obtain their IAP documents and a transcript of their evidence, and the right to deposit that material in the institution created to preserve the history of the abuses of residential schools, the NCTR” (para. 126). The notice program does not add to or detract from this right; “it merely ensures that claimants are aware of it and able to exercise it” (para. 127).
[24] On the cross-appeal, the majority found that the IAP Documents are not government records and thus are not subject to the Library and Archives of Canada Act ; accordingly, “disposal or destruction of the documents is not prohibited by law” (para. 77). “[W]hether the IAP documents are government records . . . turns on whether they are under the control of a government institution” (para. 141). Here, the IAP was not a federal government program. Rather, it was the product of a court-approved settlement. The AANDC, a listed government institution, did not control the IAP Documents through either the Secretariat or the SAO. The Secretariat, which administers the IAP, is independent from AANDC and comes under the direction of the Chief Adjudicator, and therefore the control of the Chief Adjudicator. While the SAO is part of the AANDC, it was a litigant in the IAP, representing Canada at the IAP hearings. Accordingly, the SAO’s possession and use of the IAP Documents was limited to the purposes for which they were provided. It follows that it did not control them. Strathy C.J. also held that while “the implied undertaking rule is not a precise fit for the IAP documents”, the rationale underlying the rule is, given the nature of these documents, “a harmonious exercise of the court’s inherent jurisdiction” (para. 183). The SAO could only use the IAP Documents for the purpose of the IAP process, and its possession was always constrained by the court’s inherent jurisdiction and the principle underlying the implied undertaking rule. Thus, this reaffirms that the IAP Documents were not under the control of the SAO.
[25] The majority further found the supervising judge’s order regarding destruction of all the IAP Documents (other than those in the claimants’ possession or archived with their consent) after a 15-year retention period was reasonable. The IRSSA was silent on the disposition of the documents, and the supervising judge was entitled to fill this “gap” by exercising his supervisory authority over the class action (para. 205). As the supervising judge found, “near to absolute confidentiality was a necessary aspect of the IAP” (para. 209). The mere fact that Sch. D did not require Canada to destroy the applications immediately upon conclusion of a given claim does not imply or import a right to retain all the IAP Documents forever. The public record — that is, “the history of residential school and the stories of survivors who have willingly shared them” — will still be preserved through the work of the TRC (para. 219).
[26] The majority, nevertheless, found it was unreasonable for the supervising judge to have ordered the TRC and NCTR to conduct the notice program, and varied the order to direct that it be conducted by the Chief Adjudicator. Furthermore, the majority varied the order to include the ADR documents.
[27] Justice Sharpe, while agreeing that the appeal should be dismissed, would have allowed the cross-appeal on the ground that the IAP Documents are “government records” (para. 250) which, as such, cannot be destroyed. The SAO is a government institution that has physical possession of copies of the IAP Documents in its capacity as the department of government responsible for carrying out Canada’s functions as a defendant in the IAP. This amounts to government control. The legal doctrines relied on by the supervising judge — the implied undertaking rule and breach of confidence — therefore have no application, and do not affect the status of the IAP Documents as government records. Resort should not been had “to a residual, discretionary and exceptional doctrine to justify the destruction of decisions that are central to the legitimacy of the very process the court is administering” (para. 290).
[28] Justice Sharpe also found that express language in the IRSSA shows that the parties intended that the IAP Documents would be archived. Schedule D, App. II, item (iv) provides that copies of applications “other than those held by the Government will be destroyed”. Appendix B of the Guide to the Independent Assessment Process Application (2013) (online) provides that only the National Archivist can destroy government records. The Guide states that personal information will be handled in accordance with the Access to Information Act and Privacy Act . In the result, assurances of confidentiality, relied upon by the supervising judge, cannot justify the exclusion of documents f