COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2016 ONCA
    241

DATE: 20160404

DOCKET: C59310, C59311 and C59320

Strathy C.J.O., Sharpe and MacFarland JJ.A.

BETWEEN

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 and Adrian Yellowknee

Plaintiffs (Respondents)

and

The Attorney General
    of Canada
,
    The Presbyterian Church in Canada, The General Synod of the Anglican Church of
    Canada, The United Church of Canada, The Board of Home Missions of the United
    Church of Canada, The Womens Missionary Society of the Presbyterian Church,
    The Baptist Church in Canada, Board of Home Missions And Social Services of The
    Presbyterian Church in Bay, The Canada Impact North Ministries of the Company
    for the Propagation of the Gospel in New England (also known as the New England
    Company), The Diocese of Saskatchewan, The Diocese of the Synod of Cariboo, The
    Foreign Mission of the Presbyterian Church in Canada, The Incorporated Synod of
    the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of
    the Anglican Church of Canada, The Missionary Society of the Methodist Church
    of Canada (also known as the Methodist Missionary Society of Canada), The Incorporated
    Synod of the Diocese of Algoma, The Synod of the Anglican Church of the Diocese
    of Quebec, The Synod of the Diocese of Athbasca, The Synod of the Diocese of
    Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of
    the Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the
    Diocese of Quappelle, The Synod of the Diocese of New Westminister, The Synod
    of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in
    Canada, The Board of Home Missions and Social Service of The Presbyterian
    Church of Canada, The Womens 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,
Les
Soeurs
de Notre Dame‑Auxiliatrice
,
Les
Soeurs
de St. Francois
    dAssise
,
    Insitut
des
Soeurs
du Bon Conseil
,
Les
Soeurs
de Saint-Joseph de
    Saint
Hyancinthe,
Les
Soeurs
de Jésus-Marie
,
Les
Soeurs
de lAssomption de
    la Sainte-Vierge
,
Les
Soeurs
de lAssomption de
    la Sainte-Vierge de lAlberta
,
Les
Soeurs
de
la Charite
de
St.-
Hyacinthe
,
Les Oeuvres Oblates
    de lOntario
,
Les
Residences
Oblates du
Quebec, La
    Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic
    Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Soeurs
Grises de
Montreal
/Grey Nuns of
    Montreal
,
Sisters
    of Charity (Grey Nuns) of
Alberta,
Les
Soeurs de la Charite des
T.N.O.
, Hotel
‑Dieu de
    Nicolet
,
The
    Grey Nuns of Manitoba Inc
.‑
Les
Soeurs
Grises du Manitoba Inc.
, La Corporation
    Episcopale Catholique Romaine de la Baie dHudson ‑ The Roman Catholic
    Episcopal Corporation of Hudsons Bay,
Missionary Oblates ‑ Grandin Province
,
Les Oblats de Marie
    Immaculée du Manitoba
,
    The Archiepiscopal Corporation of Regina,
The Sisters of the Presentation
,
The Sisters of St.
    Joseph of Sault St. Marie
, Sisters of Charity of Ottawa,
Oblates of Mary Immaculate

St.
    Peters Province
,
The
    Sisters of Saint Ann
,
Sisters
    of
Instruction
of the Child Jesus
, The Benedictine
    Sisters of Mt. Angel Oregon, Les Pères Montfortains,
The Roman Catholic
    Bishop of Kamloops Corporation Sole
, The Bishop of Victoria, Corporation Sole,
    The Roman Catholic Bishop of Nelson, Corporation Sole,
Order of The Oblates
    of Mary Immaculate in the
Province
of British Columbia
,
The Sisters of
    Charity of Providence of Western Canada
,
La Corporation Episcopale Catholique Romaine
de
Grouard
, Roman Catholic
    Episcopal Corporation of Keewatin, La Corporation Archiepiscopale Catholique
    Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface  The
    Missionary Oblates Sisters of St. Boniface,
Roman Catholic Archiepiscopal Corporation
    of Winnipeg
,
    La Corporation Episcopale Catholique Romaine de Prince Albert, The Roman
    Catholic Bishop of Thunder Bay,
Immaculate Heart Community of Los Angeles
,
Ca
.
, Archdiocese of
    Vancouver ‑ The Roman Catholic Archbishop of Vancouver, Roman Catholic
    Diocese of Whitehorse,
The Catholic Episcopale Corporation of Mackenzie‑Fort
    Smith
,
The
    Roman Catholic Episcopal Corporation of Prince Rupert
, Episcopal
    Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt. Angel Abbey Inc.

Defendants

(
Appellants/Respondents
    by way of cross-appeal
;
Respondent/

Appellant by way of cross-appeal
)

Charles
    Gibson and Ian Houle, for the Sisters of St. Joseph of Sault Ste. Marie

Janine Harding,
    for Twenty-Two Catholic Entities
[1]

Pierre Baribeau and Paul
    Lepsoe, for Nine Catholic Entities
[2]

Peter Grant, Diane Soroka and
    Sandra Staats, for Independent Counsel

Gary Penner and Diane
    Fernandes, for the Attorney General of Canada

Julian N. Falconer and Julian
    Roy, for the Truth and Reconciliation Commission of Canada

Joanna Birenbaum, for the
    National Centre for Truth and Reconciliation

Kate Wilson and Regan Morris,
    for the Privacy Commissioner of Canada

Stuart Wuttke, for the Assembly
    of First Nations

Joseph Arvay, Q.C., Catherine
    Boies Parker and Susan Ross, for the Chief Adjudicator of the Indian
    Residential Schools Adjudication Secretariat

Heard: October 27 and 28, 2015

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated August 6, 2014, with reasons reported at 2014
    ONSC 4585, 122 O.R. (3d) 1.

Strathy C.J.O.:

A.

INTRODUCTION

The treatment of children in Indian Residential Schools is a sad
    chapter in our history.

For more than a century, Indian Residential Schools separated over
    150,000 Aboriginal children from their families and communities. In the 1870's,
    the federal government, partly in order to meet its obligation to educate
    Aboriginal children, began to play a role in the development and administration
    of these schools.  Two primary objectives of the Residential Schools
    system were to remove and isolate children from the influence of their homes,
    families, traditions and cultures, and to assimilate them into the dominant
    culture.  These objectives were based on the assumption Aboriginal
    cultures and spiritual beliefs were inferior and unequal. Indeed, some sought,
    as it was infamously said, "to kill the Indian in the child".
    Today, we recognize that this policy of assimilation was wrong, has caused
    great harm, and has no place in our country.

Statement of Apology of
    the Right Honourable Stephen Harper,

on behalf of the
    Government of Canada,

June 11, 2008

[1]

These historic words prefaced the Canadian governments formal apology
    for Canadas role in the Indian residential school system. That apology
    recognized the enduring harm done to the children who attended the schools and
    to Aboriginal culture, heritage and language.

[2]

For over a century, the Canadian government removed Aboriginal children from
    their families and communities and placed them in schools funded by Canada and
    operated by religious organizations. There, many were inadequately fed, clothed
    and housed. Many were abused, physically, emotionally and sexually. Their
    languages and cultural practices were prohibited.

[3]

Canadas apology committed the country to a journey of healing,
    reconciliation and recovery, to remedy some of the harm done by the schools and
    to forge a new relationship with Aboriginal communities.

[4]

This appeal and cross-appeal are about a part of that journey  the Independent
    Assessment Process (IAP) provided by the Indian Residential Schools Settlement
    Agreement, dated May 8, 2006 (IRSSA).

[5]

The IRSSA is a comprehensive settlement of class actions and other
    litigation by former residential school students. The IAP is one component of
    that settlement  a mechanism to compensate survivors who suffered sexual abuse,
    physical abuse or serious psychological harm.

[6]

Under the IAP,
[3]
a survivor can apply for additional compensation above a minimum given to all
    class members. He or she is required to submit an application form with
    information about their residential school experience, including details of the
    abuse and its impact on his or her life.

[7]

The claim is then assessed after a confidential hearing conducted by a
    trained adjudicator. The claimant gives oral evidence and other witnesses,
    including alleged perpetrators, may also testify. After the hearing, the
    adjudicator releases a decision, awarding compensation in appropriate cases.

[8]

Many of the stories are horrific. The retelling is frequently traumatic
    for survivors, as they re-live the abuse they suffered as children. But, if the
    compensation and healing goals are to be achieved, they need to come forward to
    tell their stories. Every possible measure has been taken to encourage them to do
    so, and to ensure that they may do so in a private, sensitive and
    non-adversarial environment. They are given assurances of confidentiality.
    Without these assurances, many would not participate.

[9]

The appeal and cross-appeal concern the disposition of the highly
    confidential documents created within the IAP. These include the survivors application
    forms, the written and audio records of their own evidence about their abuse
    and suffering and the compensation decisions written about their claims by the
    adjudicators (collectively, the IAP Documents).

[10]

These
    appeals raise the question whether the survivors control the stories of their
    residential school experiences or whether others do. Will every survivors story
    be preserved  even against his or her wishes and at the risk of future
    disclosure  in a government archive? Or is the survivor entitled to decide
    what happens to the story  to share it with others or to take it to the grave?

[11]

The
    Supervising Judge held that other individuals and institutions affected,
    including the alleged perpetrators and the churches, do not hold a veto over
    the survivors right to share their own IAP Documents. He also held that the
    court, not the government, controls the IAP Documents and that federal
    legislation does not require their archiving at the governments discretion. The
    court was required to give effect to the survivors wishes about their own
    stories. He ordered there be a 15-year retention period, during which survivors
    could decide whether they wanted to transfer their documents to the National
    Centre for Truth and Reconciliation (NCTR). The Truth and Reconciliation
    Commission (TRC) or the NCTR would notify survivors of their option to transfer
    their documents to the NCTR.  At the end of the 15-year period, all IAP
    Documents in the possession of others, including the government, would be
    destroyed.

[12]

On
    the appeal, the Sisters of St. Joseph of Sault Ste. Marie, the Twenty-Two Catholic
    Entities, and the Nine Catholic Entities (together, the Catholic Entities)
    appeal the Supervising Judges order that the IAP Documents may be archived at
    the NCTR at the request of the IAP claimant alone. They say the IRSSA expressly
    provides that archiving may only take place with their consent. Independent
    Counsel agrees with the Catholic Entities that the consent of everyone affected
    is needed before any IAP Documents may be transferred to an archive.

[13]

On
    the cross-appeal, Canada, supported by the TRC and the NCTR, says that it controls
    the IAP Documents and that they are subject to federal privacy, access to
    information and archiving legislation. The Chief Adjudicator and the Assembly
    of First Nations (AFN) disagree and generally support the Supervising Judges
    decision. They say that the records in the possession of everyone but class
    members should ultimately be destroyed. Class members will have the right to
    archive their statements and to transfer their IAP Documents to the NCTR, but
    the choice is theirs. Independent Counsel also assert that the notice program
    should not be run by the TRC or NCTR, that the retention period for IAP Documents
    should be lowered to two years, and that the order should include documents
    from the alternative dispute resolution (ADR) process.

[14]

For
    the reasons that follow, I would dismiss the Catholic Entities appeal and the cross-appeals
    of Canada, the TRC and the NCTR. I would, however, vary the order below to give
    effect to Independent Counsels submissions on the administration of the notice
    program and the ADR documents.

B.

BACKGROUND

(1)

The IRSSA

[15]

In
    November 2003, in the wake of individual lawsuits and class actions on behalf
    of former residential school students, Canada established a voluntary ADR
    process to compensate survivors.

[16]

Discussions
    continued with a view to a global settlement of the outstanding litigation. In
    May 2005, Canada and the AFN agreed to negotiate a settlement to compensate
    survivors and to provide a process for truth and reconciliation and healing.

[17]

These
    discussions culminated in the execution of the IRSSA. The parties were Canada; the
    plaintiffs as represented by the AFN, Inuit Representatives, Independent Counsel,
    and others; and the United, Anglican, Presbyterian, and Roman Catholic
    Churches, and other Catholic Entities.

[18]

The
    settlement merged all existing class actions and all pending individual
    actions. It established a national class of some 79,000 former students who resided
    at residential schools before December 31, 1997.

[19]

The
    goals of the IRSSA, as set out in the preamble, are to achieve a fair,
    comprehensive and lasting resolution of the legacy of Indian Residential
    Schools and to promote healing, education, commemoration, and truth and
    reconciliation.

[20]

The
    IRSSA achieves these goals in four ways: (a) compensation to former students of
    residential schools; (b) a truth and reconciliation process; (c) healing
    programs; and (d) resolution of all outstanding litigation.

[21]

The
    first goal, compensation, has two components: the Common Experience Payment
    (CEP) and the IAP. The CEP is a minimum amount payable to all former residential
    school students. Canada established a $1.9 billion fund for the payment of the
    CEP to all class members who were alive as of May 30, 2005. Those class members
    are entitled to compensation of $10,000 for their first year of attendance at a
    residential school and $3,000 for each subsequent year.

[22]

Compensation
    through the IAP is in addition to the CEP and is payable to former students who
    were victims of serious abuse. This is an enhancement of the ADR process
    established in 2003, which had resolved about 1,000 claims by the time of
    settlement approval. Canada agreed to fund the IAP to the extent necessary to
    ensure its implementation.

[23]

The
    second goal, reconciliation, was addressed by the establishment of the TRC. Canada
    provided $60 million for the work of the TRC and a further $20 million for
    commemorative projects. The TRC was intended to be a process for reconciliation
    and to create a permanent public record of the residential school system. The
    IRSSA provided that a national centre, ultimately the NCTR, would be created
    for research and public information on residential schools.

[24]

The
    third goal, healing, was facilitated by the establishment of the Aboriginal
    Healing Foundation to fund culturally appropriate healing programs. Canada
    agreed to pay $125 million as an endowment for the foundation.

[25]

The
    fourth goal, resolution of all outstanding litigation, was addressed by the
    terms of the settlement. Class members are deemed to have released Canada and
    the Church entities from all their claims in exchange for the payments and
    other benefits under the IRSSA.

[26]

The
    agreement required the approval of the supervising courts of nine provinces and
    territories.
[4]
In
Baxter v. Canada

(A.G.)
(2006), 83 O.R. (3d) 481 (S.C.),
    Winkler J., then supervising judge for Ontario, approved the IRSSA subject to
    concerns being addressed about the lack of independence of the planned
    administration and implementation of the settlement. By January 2007, the supervising
    courts had approved the settlement as being fair, reasonable and in the best
    interests of class members.

[27]

The
    approval orders incorporate all the terms of the IRSSA and confirm the courts
    jurisdiction to supervise the implementation of the settlement. The Ontario
    Superior Court order approving the IRSSA states this Court shall supervise the
    implementation of the Agreement and this judgment and, without limiting the
    generality of the foregoing, may issue such orders as are necessary to
    implement and enforce the provisions of the Agreement and this Judgment.

[28]

In
    March 2007, the supervising courts issued identical implementation orders. These
    orders reaffirm the need for the courts to oversee and supervise the
    implementation and administration of the agreement.

(2)

The IAP

[29]

The
    IAP is ongoing, with all first hearings expected to be completed this year.

[30]

Under
    the IAP, specially selected and trained adjudicators hear and decide claims for
    compensation by former students who were victims of sexual abuse, serious
    physical abuse and wrongful acts resulting in serious psychological
    consequences. Compensation for abusive acts and consequential harm is limited
    to $275,000, and compensation for consequential income loss can be awarded up
    to $250,000. There is a right to access the courts in complex cases, cases of
    catastrophic harm, or claims for more substantial income loss or loss of opportunity.

[31]

Compensation
    is assessed depending on the nature of the acts, the consequential harm and the
    presence of specified aggravating factors. Compensation is payable for
    incidents of abuse by adults as well as for student-on-student abuse.

[32]

Schedule
    D to the IRSSA, one of many schedules, deals with the IAP. Although 49 pages
    long, nowhere does the Schedule, or indeed the IRSSA itself, directly address
    what is to become of the IAP Documents after the process is completed.

[33]

Schedule
    D contains a provision providing for the archiving of a complainants IAP
    hearing evidence, if he or she wishes. A provision in a separate schedule,
    dealing with the TRC, stipulates that information from the IAP can be
    transferred to the TRC for research and archiving purposes, [i]nsofar as
    agreed to by the individuals affected. That provision, set out below, is the
    focus of the Catholic Entities appeal.

Application for the IAP

[34]

To
    initiate the IAP, a claimant submits an application form to the Indian
    Residential Schools Adjudication Secretariat (Secretariat). The application is then
    forwarded to the government and to the church entity that operated the school
    in question. The Settlement Agreement Operations Branch (SAO), a branch within
    Aboriginal Affairs and Northern Development Canada (AANDC), carries out
    Canadas functions as a defendant in these claims.

[35]

The
    application is to be shared only with those who need to see it, to assist the
    government with its defence or to assist the church entity with its ability to
    defend the claim or with insurance coverage. Every person with whom the
    application is shared is required to respect its confidentiality.

[36]

If
    the application is given to an alleged perpetrator, information on the residence
    of the claimant and of any witness is redacted. Information on the effects of
    the abuse on the claimant is not to be provided to an alleged perpetrator,
    except with the consent of the claimant.

[37]

The
    relevant section of Schedule D concludes as follows:

Copies [of the application] will be made only where absolutely
    necessary, and all copies other than those held by the Government will be
    destroyed on the conclusion of the matter, unless the Claimant asks that others
    retain a copy, or unless counsel for a party is required to retain such copy to
    comply with his or her professional obligations.

[38]

Canada
    relies on this provision, particularly the words other than those held by the Government,
    in support of its argument that the application forms and other IAP Documents are
    government records and thus subject to the federal privacy and access to
    information regime.

[39]

A
    Guide to the IAP Application was prepared to assist claimants in filing their
    applications.
[5]
Claimants are required to provide detailed information in the application, in
    their own words, concerning the abuse they suffered. The Guide notes that
    completing the application form can be an emotionally painful experience and states
    that claimants who are resolving their IAP claims will have access to emotional
    health and wellness support services. A Health Support Program has been in
    place, supported by Health Canada Service providers.

[40]

The
    application form notes that because the
Privacy Act
, R.S.C. 1985, c.
    P-21, protects personal information, Health Canada requires the claimants
    permission to ask other government departments for information about the
    claimant and their claim. The application form gives permission to Library and Archives
    Canada and other government departments to share the applicants records with
    AANDC. It also gives AANDC permission to share information with Health Canada for
    the purpose of confirming eligibility for health support services.

[41]

Appendix
    B to the Guide is entitled Protection of your personal information. On the
    first page of this document, under the heading, Level of security, it says:

We will treat your
Application Form
with care and
    confidentiality. This means that security rules are in place to protect your
Application
    Form
. The Government of Canada uses the Protected B security level for
    sensitive and personal information. Once you submit it, we will treat your
Application
    Form
as a Protected B document.

[42]

Under
    the heading Privacy and Information Laws the Guide states:

The
Privacy Act
is the federal law that controls the way
    the government collects, uses, shares and keeps your personal information. The
Privacy
    Act
also allows people to access personal information about themselves.

The
Access to Information Act
is the federal law that allows
    access to government information. However, it protects certain kinds of
    information, including personal information.

We will deal with personal information about you and other
    people you identify in your claim privately and confidentially. We will do so
    in accordance with the
Access to Information Act
, the
Privacy Act
,
    and any other applicable law, or we will ask your permission to share
    information.

In certain situations, the government may have to give personal
    information to certain authorities. For example, in a criminal case before the
    courts the government may have to give information to the police if they have a
    search warrant. Another example is when the government has to give information
    to child welfare authorities or the police if the government finds out that a
    child needs protection. The government will also share personal information
    with people involved in resolving your claim, as we describe in the section
    Sharing your personal information with others on the next page.

You can find more information about these laws on the internet
    at
www.priv.gc.ca
.

[43]

The
    Guide states, under the heading Collection of personal information:

Personal information in your
Application Form
and all
    documents we gather for your claim are collected
only
so we can (1)
    operate and administer this Independent Assessment Process and (2) resolve your
    residential school claim. [Emphasis added.]

[44]

The
    document specifies the parties with whom the claimants application will be
    shared. These include witnesses, the adjudicator, alleged perpetrators, church
    representatives, if involved in the resolution of the claim, and Health Canada,
    if providing counselling support.

[45]

The
    document concludes, under the heading Keeping your records:

The
Privacy Act
requires the government to keep your
    personal information for at least two years. Currently, the government keeps
    this information in the National Archives for 30 years, but this practice can
    change at any time. Only the National Archivist can destroy government records.

The IAP hearing

[46]

IAP
    hearings are closed to the public. Participants, including the claimants, Canadas
    representatives and alleged perpetrators are required to sign agreements to
    keep confidential everything disclosed at the hearing, except their own
    evidence or as required by law. The claimant agrees that that they will not
    disclose any information presented at the hearing except my own evidence or as
    required within the IAP or otherwise by law.

[47]

Claimants
    are entitled to have a support person present at the hearing to ensure the
    health and safety of the Claimant during a stressful event. Counsellors, or
    ready access to counselling services, are to be available as well. At the claimants
    request, a cultural ceremony, such as an opening prayer or a smudge, can be
    incorporated into the hearing.

[48]

The
    hearing is inquisitorial, rather than adversarial. Adjudicators are specially
    trained to conduct the hearing in a way that is respectful to the claimant and
    conducive to obtaining a full description of his or her experience. Counsel for
    Canada has no right to cross-examine the claimant. Instead, counsel for Canada
    and the claimant meet with the adjudicator to suggest questions, but the
    questioning itself is done by the adjudicator. The alleged perpetrator has no
    right of confrontation  that is, no right to cross-examine the claimant,
    either personally or through counsel.

[49]

Until
    2012, it was common practice for adjudicators to give assurances to claimants and
    alleged perpetrators that their testimony would be kept confidential to the
    people in the hearing room.  When the TRC began to request IAP records, and it
    became apparent that the issue might have to be addressed by the courts, the
    Chief Adjudicator sent a direction to all adjudicators. He asked them not to
    give iron-clad assurances about confidentiality but to advise claimants and
    other participants that the information is protected by law, will be handled
    securely and seen by those who have a legitimate need to see it.

[50]

Proceedings
    at the IAP hearing are recorded and are transcribed to facilitate report
    writing by adjudicators and for any review hearing that may occur. A claimant,
    but no one else, is entitled to receive a transcript of his or her evidence
    for memorialization.

[51]

Claimants
    were to be given the option of having the transcript deposited in an archive.
    As the Supervising Judge found, that never happened for the roughly 38,000
    survivors who had submitted applications for the IAP, about 30,000 of which had
    been resolved at the time of his decision. The notice program, at issue in this
    appeal, addresses this gap.

IAP decisions

[52]

Claimants
    are entitled to receive a copy of the adjudicators decision, redacted to
    remove identifying information about any alleged perpetrators. They are free to
    discuss the outcome of their hearing, including the amount of any compensation
    they are awarded.

(3)

The TRC

[53]

The
    IRSSA also established the TRC, with a mandate, among other things, to create a
    record of the residential schools system that was to be accessible to the
    public for future use. The NCTR was to archive and store the records collected
    by the TRC, together with the records of the history of residential schools.

[54]

The
    truth and reconciliation process is separate from the compensatory aspects of
    the IRSSA. The TRC was established to contribute to the goals of truth,
    reconciliation and healing. It was intended to be victim-centred, confidential
    when requested, and a means for former students and others to come forward to
    tell their stories, if they wished. As such, it was to provide a holistic,
    culturally appropriate and safe setting for survivors to tell their stories.

[55]

The
    TRC was required to produce a final report, which it did on December 15, 2015.
    The report indicates that about 6,000 survivors told their stories to the
    commission. The TRC also provided a means for archiving all documents,
    materials, transcripts and recordings it received in accordance with access
    and privacy legislation.

[56]

In
    order to ensure the efficacy of the truth and reconciliation process, Canada
    and the churches were required to provide all relevant documents in their
    possession and control for the use of the TRC, subject to the privacy interests
    of individuals as provided by the applicable legislation.

[57]

Schedule
    N of the IRSSA deals with the mandate of the TRC.  Of particular concern to the
    Catholic Entities is s. 11, which provides that information could be
    transferred to the TRC [i]nsofar as agreed to by the individuals affected.

[58]

As
    discussed below, the Catholic Entities say that this provision gives them and
    alleged perpetrators a veto over a claimants entitlement to transfer his or
    her IAP Documents to the NCTR.

(4)

The proceedings below

[59]

In
    2013, disagreements over the disposition of the records of the IAP led to the TRC
    and the Chief Adjudicator of the Secretariat each bringing a Request for
    Directions ("RFD") to the court. The Supervising Judge heard their requests
    in July 2014.

[60]

Both
    requested a direction that a notice program be developed to inform claimants
    that some of their IAP Documents could be archived at the NCTR, if the claimant
    so chooses.

[61]

The
    Chief Adjudicator sought an order that all other copies of the IAP Documents in
    the hands of the parties be destroyed. The TRC sought an order that they be
    archived at Library and Archives Canada, which is a part of the Government of
    Canada.

[62]

Canada
    and the NCTR substantially agreed with the TRC, as the AFN did with the Chief
    Adjudicator, while the Catholic Entities opposed the notice program and any
    archiving without the consent of all individuals affected. Independent Counsel
    agreed with the Catholic Entities that consent of all individuals affected was
    required for archiving.

[63]

The
    Supervising Judge held that IAP Documents could be archived with the claimants
    consent alone. He ordered a notice program to inform claimants of their right
    to do so. He also ordered the destruction of all other IAP Documents.

[64]

The Supervising Judge held there was no merit to the Catholic Entities
    opposition to claimant-requested archiving and the notice program. He found the
    IRSSA provided claimants the right to archive and that a notice plan could be
    designed that was consistent with the IRSSA.

[65]

On
    the disposition of the IAP Documents, the Supervising Judge concluded that a
    destruction order was necessary to protect the confidentiality and privacy of
    the information contained in the IAP Documents, as bargained for in the IRSSA.
    Destruction would take place, he said, but only after a 15-year retention
    period during which the documents would be governed by the
Access to
    Information Act
, R.S.C. 1985, c. A-1, and the
Privacy Act.

[66]

During
    the retention period there would be a court-approved notice program to advise
    the survivors of their right to choose to transfer some of their documents,
    after the redaction of personal information.

[67]

He
    came to this disposition based on his findings of fact, and after considering
    and rejecting arguments that the IAP Documents should be governed by the
    document management regime set out in the
Privacy Act
,
Access to
    Information Act
and the
Library and Archives of Canada Act,
S.C.
    2004, c. 11.

[68]

His
    findings of fact included: that the IAP Documents contained some of the most
    private and intimate personal information imaginable; that it was very painful
    and difficult for survivors to describe their claims in public, in part because
    some claimants were abused by other students or became abusers themselves; and
    that claimants and alleged perpetrators relied on the confidentiality
    assurances in the IAP and IRSSA. Without those assurances, he found, the IAP
    could not have functioned.

[69]

He
    accepted expert evidence that preservation of records, even in an  anonymized
    form, could potentially result in identification of perpetrators and survivors
    in small Aboriginal communities, causing lasting and irreparable harm to future
    generations. He found that some claimants would not have participated in the
    IAP had they been told that their intensely private experiences might be
    preserved in a government archive, with the possibility, however remote, that
    they might be accessible by future generations.

[70]

The
    Supervising Judge rejected Canadas argument that the IAP Documents are under
    the control of a government institution and therefore government records
    subject to Canadas privacy, access to information and archiving regime. They are
    not government records because they are not under Canadas control  they are only
    under the control of the various supervisory bodies established by the IRSSA,
    which were ultimately subject to the courts control. In any event, he held
    that even if they are government records, the courts jurisdiction extended
    over Canadas possession of them.

[71]

He
    rejected Canadas argument that the express references in the Guide to the
Privacy
    Act
and the
Access to Information Act
informed claimants that their
    Documents might be disclosed. He also found that there is no express language
    in the IRSSA that told claimants or the defendants that their IAP Documents
    would be archived at Library and Archives Canada where, pursuant to s. 8(3) of
    the
Privacy Act
, their personal information might be disclosed for
    research or historical purposes or subject to access or
Privacy Act
requests.

[72]

He
    also rejected Canadas argument, repeated in this court, that a term in Schedule
    D to the IRSSA, which says that all copies [of the IAP Application Form] other
    than those held by the Government will be destroyed on the conclusion of the
    matter, means that Canada is entitled to retain the application forms for
    archiving. This provision, he said, is simply to permit Canada to keep the application
    form during the retention period.

[73]

The
    Supervising Judge identified three bases on which he could order the
    destruction of the IAP Documents: to interpret, enforce, and administer the
    IRSSA; to enforce the implied undertaking rule; and to remedy a breach of
    confidence. He noted that the courts jurisdiction flows from its inherent
    jurisdiction, class proceedings legislation, and from the IRSSAs approval and
    implementation orders.

[74]

His
    final order provides that (a) with the redaction of personal information about
    alleged perpetrators or affected parties and with the consent of the claimant,
    his or her IAP Documents can be archived at the NCTR; (b) the Chief Adjudicator
    is to retain all IAP Documents in his possession for 15 years after the
    completion of the IAP hearings; (c) after that retention period, the Chief Adjudicator
    is to destroy all IAP Documents; and (d) any other person or entity in
    possession of the IAP Documents is to destroy them after the completion of the
    IAP hearings.

C.

Issues

[75]

To
    resolve the appeals and cross-appeals, this court must answer the following
    questions:

Appeals

(1)

Who must consent to archiving
    the IAP Documents?

(2)

Is the notice program a material
    amendment to the IRSSA?

Cross-Appeals

(1)

Are the IAP Documents government
    records?

(2)

Is the order to destroy IAP Documents
    reasonable?

(3)

Is the 15-year retention period
    reasonable?

(4)

Was it reasonable to order the
    TRC and NCTR to conduct the notice program?

(5)

Should the orders on IAP
    Documents apply to the ADR documents?

[76]

On
    the appeals, I conclude that IAP Documents may be archived with the consent of
    the claimant alone. I also conclude the notice plan falls within the Supervising
    Judges administrative discretion  it was not a material amendment to the
    IRSSA.

[77]

On
    the cross-appeals, I find that the IAP Documents are not government records
    subject to the
Library and Archives Act
. Thus, the disposal or
    destruction of the documents is not prohibited by law. And I find that it was
    reasonable to make the order to ultimately destroy all IAP Documents, other
    than those in the claimants possession or archived with their consent. I also
    find that the 15-year retention period is reasonable.

[78]

However,
    in my view, it was unreasonable to order the TRC and NCTR to conduct the notice
    program, and I would order the Chief Adjudicator to do so instead.

[79]

Finally,
    I agree that the order should have included the ADR documents.

D.

STANDARD OF REVIEW

[80]

Answering
    these questions involves reviewing the Supervising Judges contractual
    interpretation, his conclusions based on the application of legal standards to facts,
    and his exercise of administrative discretion as a class action judge.

[81]

In
    summary, my conclusions on the standards of review are as follows. First, as I
    will discuss further below, questions of contractual interpretation, such as
    whether Schedule N, s. 11 requires all affected individuals consent for
    archiving, should be reviewed for reasonableness.

[82]

Second,
    the government records issue should be reviewed for correctness.  While the
    Supervising Judge correctly stated the test from
Canada (Information
    Commissioner) v. Canada (Minister of Defence)
, 2011 SCC 25, [2011] 2 S.C.R.
    306, he did not apply the factors set out therein, nor did he distinguish
    between the two entities that possess the IAP Documents and through which
    Canada claims control.  The analysis called for different considerations in
    each case: see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235,
    at paras. 27, 31.

[83]

Finally,
    the remaining questions relate to gaps and unfulfilled promises in the IRSSA. Their
    resolution required the Supervising Judge to exercise his administrative
    discretion as a class action judge.  As I elaborate on in my analysis, the
    Supervising Judges decision on these issues should be afforded deference, and
    reviewed for reasonableness: see e.g.
Lavier v. MyTravel Canada Holidays
,
    2013 ONCA 92, 359 D.L.R. (4th) 713, at para. 20.

[84]

The
    standard of review of the Supervising Judges interpretation of the IRSSA was a
    subject of some controversy among the parties. I will therefore explain further
    why, absent an extricable error in law, or a palpable and overriding error in
    the assessment of the evidence, that interpretation, and conclusions based on
    that interpretation, are to be reviewed on a deferential standard.

[85]

In
Sattva

Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2
    S.C.R. 633, at para. 50, the Supreme Court unanimously held that [c]ontractual
    interpretation involves issues of mixed fact and law as it is an exercise in
    which the principles of contractual interpretation are applied to the words of
    the written contract, considered in light of the factual matrix. Rothstein J.,
    writing for the court, held that the historical approach that treated the
    interpretation of a contract as a question of law should be abandoned.

[86]

He
    offered two justifications for abandoning the historical approach. First,
    contract interpretation has progressed from technical rules toward a
    practical, common-sense approach in which the decision-maker considers the
    surrounding circumstances or factual matrix:
Sattva,
at paras.
    46-47. Second, the distinction in the Supreme Courts jurisprudence between
    questions of law and questions of mixed fact and law suggests that contract
    interpretation falls into the latter category, because, when interpreting a
    contract, a decision-maker must ascertain the objective intent of the parties
     a fact-specific goal  through the application of legal principles of
    interpretation:
Sattva,
at para. 49.

[87]

Rothstein
    J. noted, at paras. 53-55, that it may be possible to extricate a question of
    law from the interpretation of a contract, but observed that courts should be
    cautious in identifying extricable questions of law in disputes over
    contractual interpretation and that the circumstances in which a question of
    law can be extricated from the interpretation process will be rare.

[88]

In
    this courts recent decision in
MacDonald v. Chicago Title Insurance Co. of
    Canada
, 2015 ONCA 842, 127 O.R. (3d) 663, Hourigan J.A. applied a
    correctness standard to a motion judges interpretation of a title insurance
    policy. In doing so, he explained, at paras. 20-21, the two primary reasons underlying
    the Supreme Courts departure from the correctness standard of review for
    contract interpretation in
Sattva
.

[89]

First,
    the modern focus on contextual factors in contact interpretation makes the
    exercise one of mixed fact and law, in which interpretative principles are
    applied in light of the factual matrix. Second, principles of judicial economy
    and finality dictate that cases turning on their facts, which have no impact
    beyond the immediate parties, should be resolved by first-instance decision
    makers, in the absence of an extricable error of law.

[90]

These
    considerations led Hourigan J.A. to find that it remained appropriate to apply
    a correctness standard to the title insurance policy in question. It was a
    standard form policy in common and extensive use. The factual context was of
    little significance in the interpretive exercise, since it was a contract of
    adhesion. Furthermore, the decision would have significant precedential value.

[91]

Here,
    unlike in
MacDonald,
the examination of the factual matrix featured
    large in the interpretive exercise. This suggests a reasonableness standard.

[92]

Nevertheless,
    the appellants and cross-appellants challenging the decision of the Supervising
    Judge argue that the applicable standard of review is correctness, because the
    outcome of the case will affect thousands of people. They rely on a prior
    appellate decision interpreting the IRSSA:
Fontaine v. Canada (A.G.)
,
    2014 MBCA 93, 310 Man. R. (2d) 162.

[93]

In
    that case, the main issue was whether an IAP claimant advancing a claim for
    actual income loss greater than $250,000 had fully and finally exited the IAP
    process if granted access to the courts by the Chief Adjudicator. The supervising
    judge determined that the claimant did not exit the IAP process, and Canada
    appealed.

[94]

At
    the outset of its analysis, the Manitoba Court of Appeal stated, at para. 40,
    that the applicable standard of review was correctness:

The  parties  agree,  as  do  I,  that  both  issues  involve
    errors  of  law  or  extricable questions  of  law  and  are  reviewable  on
    a  standard  of  correctness.  As  was  stated by  Rothstein  J.  in
Sattva
,
    one  of  the  purposes  of  drawing  a  distinction  between questions of law
    and those of mixed fact and law is to limit the intervention of appellate
    courts  to  cases  where  the  results  can  be  expected  to  have  an  impact
    beyond  the  parties  to  the  particular  dispute...  In  this  case,  the
    Agreement  has applicability to thousands of claimants across the country and
    as such,
the manner in  which  it  is  interpreted  has  great
    precedential  value,  and  brings  certainty  to others involved in similar
    disputes
[Citations omitted, emphasis added.]

[95]

In
    my view, counsels reliance on this case is misplaced. The question is not
    whether the decision will impact

many people, but whether it will have
    precedential value, in the sense that it provides guidance to adjudicators or
    resolves an issue that could arise in future litigation. The fact that the
    outcome of the interpretation of the agreement will affect many  indeed many
    thousands  of claimants, is not, of itself, a reason to elevate the standard
    of review to correctness.

[96]

This
    is not a case like the decision of the Manitoba Court of Appeal in
Fontaine
,
    in which the decision had precedential value for future cases. There will be no
    future cases like this one. This is a once-and-for-all determination of the
    rights of all parties relating to these issues under the IRSSA.

[97]

Here,
    the fact-based, contextual nature of the interpretative process mandates
    deference in the absence of an extricable error of law or a palpable and
    overriding error in the assessment of the evidence. The standard of review is
    reasonableness.

E.

ANALYSIS  THE APPEAL OF THE CATHOLIC ENTITIES

[98]

The
    Catholic Entities argue that the Supervising Judges order that IAP Documents
    may be archived at the NCTR at the request of a claimant alone is contrary to
    the IRSSA and to the promise that the IAP would be confidential.

[99]

They
    also say that the Supervising Judges order of a notice program to advise
    claimants of their right to archive IAP Documents is a material amendment to
    the terms of the IRSSA and exceeded his jurisdiction.

[100]

I would dismiss
    the Catholic Entities appeals for the reasons that follow.

(1)

Who must consent to archiving the
    IAP Documents?

[101]

Various terms of
    the IRSSA deal with the capacity of claimants to access and obtain copies of
    their own IAP Documents and to reveal the contents of those documents.

[102]

Schedule D of
    the IRSSA concerns the IAP. Article III(o)(ii) of that schedule provides that
    the IAP proceedings will be recorded and transcribed for certain purposes.
    Adjudicators may request a transcript to facilitate report writing. Transcripts
    may also be prepared in the event a decision is reviewed. The same provision
    provides that a claimant may request a copy of their own evidence for
    memorialization. Finally, and crucially for present purposes, the provision states
    that Claimants will also be given the option of having the transcript
    deposited in an archive developed for the purpose.

[103]

The provision
    dealing with the transcript of a claimants evidence is consistent with other parts
    of the IRSSA. Their overall effect is that residential school survivors are
    free to disclose their own experiences, despite any claims that others may make
    with respect to confidentiality and privacy.

[104]

For example, the
    Declaration signed by an IAP claimant as part of the IAP application form
    requires a claimant to respect the private nature of any hearing and not to
    disclose any witness statement or anything said at the hearing. However, it
    explicitly permits the claimant to disclose what I say myself.

[105]

The
    Confidentiality Agreement likewise exempts the claimants own evidence from
    the obligation to keep confidential the information that is presented at the
    hearing. Article III(o)(i) of Schedule D explicitly permits claimants to
    disclose their own evidence, despite the fact that the hearing is closed to the
    public. That article also provides that claimants will receive a copy of the
    decision, redacted to remove identifying information about any alleged
    perpetrators, and that claimants are free to discuss the outcome of their
    hearing, including the amount of any compensation they are awarded.

[106]

At the heart of
    the Catholic Entities appeals is the submission that a term in a different
    schedule, Schedule N, requires the consent of any person or institution against
    whom a claimant makes allegations of wrongdoing (persons of interest) before
    information or documents are archived.

[107]

The relevant
    provision in Schedule N is s. 11, which I set out here in its entirety:

11. Access to Relevant Information

In order to ensure the efficacy of the truth and reconciliation
    process, Canada and the churches will provide all relevant documents in their
    possession or control to and for the use of the Truth and Reconciliation
    Commission, subject to the privacy interests of an individual as provided by
    applicable privacy legislation, and subject to and in compliance with
    applicable privacy and access to information legislation, and except for those
    documents for which solicitor-client privilege applies and is asserted.

In cases where privacy interests of an individual exist, and
    subject to and in compliance with applicable privacy legislation and access to
    information legislation, researchers for the Commission shall have access to
    the documents, provided privacy is protected. In cases where solicitor-client
    privilege is asserted, the asserting party will provide a list of all documents
    for which the privilege is claimed.

Canada and the churches are not required to give up possession
    of their original documents to the Commission. They are required to compile all
    relevant documents in an organized manner for review by the Commission and to
    provide access to their archives for the Commission to carry out its mandate.
    Provision of documents does not require provision of original documents.
    Originals or true copies may be provided or originals may be provided
    temporarily for copying purposes if the original documents are not to be housed
    with the Commission.

Insofar as agreed to by the
individuals
    affected
and as permitted by process requirements, information from the
    Independent Assessment Process (IAP), existing litigation and Dispute
    Resolution processes may be transferred to the Commission for research and
    archiving purposes. [Emphasis added.]

[108]

The Catholic
    Entities place particular reliance on the concluding paragraph of s. 11 and argue
    that, because disclosure of allegations of wrongdoing made by claimants in the
    IAP would impact the reputations of others  alleged perpetrators, other
    witnesses, students, church institutions and staff  any such individual or
    institution falls within the class of individuals affected. The individual or
    institution, they say, is thereby given the right to refuse the consent
    required before IAP Documents are archived.

[109]

This submission
    is bolstered by the Catholic Entities contention that the lack of procedural
    protections for persons of interest in the IAP makes it unfair to deny them a right
    to prevent the transfer of the IAP Documents. They point out that under the IAP
    they did not have the right to face or cross-examine their accusers or to test
    the evidence led in support of a claim in the usual adversarial manner.

[110]

The Catholic
    Entities submit that the lack of procedural fairness renders the evidence heard
    and the findings made one-sided, untested and unreliable. They say that the
    reputations of persons of interest will be unfairly besmirched if IAP Documents
    can be archived at the sole request of the claimant. They further submit that
    the IRSSA promised them confidentiality, and that confidentiality is denied by
    the Supervising Judges order that the IAP Documents may be transferred to the NCTR
    with the sole consent of the claimant.

[111]

In my view, when
    the words individuals affected are read in the context of Schedule N, s. 11
    and the IRSSA as a whole, they cannot reasonably bear the meaning contended for
    by the Catholic Entities.

[112]

The purpose of
    s. 11 is to require Canada and the churches to provide relevant documents in
    their possession for the use of the TRC subject to the privacy interests of an
    individual as provided by applicable privacy legislation, and subject to and in
    compliance with applicable privacy and access to information legislation. Canada
    and the churches must provide copies of documents in their possession and
    provide access to any archives they maintain to permit the TRC to carry out its
    mandate.

[113]

Schedule N deals
    primarily with the TRC, not the IAP. Section 11 refers only to the transfer of IAP
    Documents to the TRC by those responsible for administering the IAP. It does
    not deal with the very different question that is before us on this appeal,
    namely, the right given to IAP claimants to have their IAP Documents deposited
    in the NCTR archive.

[114]

If the Catholic
    Entities argument were accepted, s. 11 would eviscerate  important rights granted
    by the other provisions of the IRSSA that give IAP claimants control over their
    IAP Documents, the right to disclose their complaints, and to have their
    evidence archived.

[115]

In their factum,
    the Nine Catholic Entities also argue that any transfer of IAP Documents
    without the knowledge and written consent of their members would breach those
    members rights under the
Civil Code of Québec
, C.Q.L.R., c. C-1991, and
    the
Charter of human rights and freedoms
, R.S.Q., c. C-12. However, this
    argument was not advanced in oral submissions and it appears to have been only
    tangentially raised before the Supervising Judge.

[116]

In my view, the
    argument has no merit. Any disclosure of information under the terms of the
    IRSSA flows directly from the agreement the Nine Catholic Entities signed on
    behalf of their members. They and their members thereby surrendered certain
    rights in exchange for significant benefits. Having agreed to the terms of the
    IRSSA, the Nine Catholic Entities cannot now complain of the loss of any rights
    they thereby surrendered.

[117]

Nor do I see any
    merit in the contention that alleged perpetrators and other individuals and
    institutions should have the right to veto the archiving of IAP Documents
    because of the lack of procedural protections accorded in the IAP.

[118]

The IAP was a
    negotiated solution to a difficult problem that benefited all parties,
    including the Catholic Entities and alleged perpetrators. By signing the IRSSA,
    the Catholic Entities agreed to surrender certain procedural rights they would
    have enjoyed had the claims been pursued by way of ordinary litigation, in
    exchange for significant benefits. Ordinary litigation was avoided, the burden
    of liability was assumed by Canada and the Catholic Entities gained immunity
    from a significant potential liability. They enjoyed limited procedural rights
    in the IAP precisely because they agreed to forgo those rights in exchange for
    protection from the legal jeopardy they would have otherwise faced.

[119]

A claimants
    archiving of documents with the NCTR does nothing more than preserve the
    documents for what they are: the stories of claimants who say they suffered
    mistreatment and abuse in residential schools. Residential school survivors are
    entitled to tell those stories. Untested stories remain untested allegations,
    not proven according to the ordinary exacting standards of the law. They do not
    have to be the product of a contested adversarial hearing to make them eligible
    for archiving.

[120]

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. There was nothing to stop an IAP claimant from entering the
    TRC process and telling his or her story there so that it would be preserved
    for all to see. The IAP claimant would not have required anyones permission or
    consent to take that step.

[121]

I fail to see
    any reason why a claimant should require permission or consent to accomplish
    the very same result simply by depositing the IAP transcript with the NCTR.

[122]

I therefore
    conclude that the Supervising Judge correctly found that IAP claimants may
    deposit their transcripts in an archive at the NCTR without the consent of any
    other party or person.

[123]

I turn to the
    second question on the appeal: whether the notice program ordered by the
    Supervising Judge is a material amendment to the IRSSA.

(2)

Is the
    notice program a material amendment to the IRSSA?

[124]

The Catholic
    Entities submit that the Supervising Judge effectively amended the IRSSA by
    ordering the notice program. They say there is nothing in the IRSSA that
    contemplates or authorizes the notice program.

[125]

I do not accept
    that submission.

[126]

As I noted
    above, article III(o)(ii) of Schedule D expressly contemplates that Claimants
    will be given the option of having the transcript deposited in an archive
    developed for the purpose. In my view, it is clear that the 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.

[127]

The notice
    program does not add to that right; it merely ensures that claimants are aware
    of it and able to exercise it. The notice program does not alter the terms of
    the IRSSA, create new rights or ignore other rights. It serves only to ensure
    that the rights accorded by the IRSSA are understood and respected. Indeed, the
    issue of notice is expressly contemplated in the IRSSA. The notice program
    falls squarely within the Supervising Judges responsibility and jurisdiction
    as the supervising class action judge to ensure that the IRSSA is properly
    implemented and that it delivers the promised benefits to class members: see
Baxter
,
    at paras. 12, 50.

[128]

For these
    reasons, I would dismiss the appeals of the Catholic Entities.

F.

ANALYSIS  THE CROSS-APPEALS

[129]

Canada,
    supported by the TRC and NCTR, argues that the IAP Documents are government
    records and thus cannot be destroyed. It also challenges the reasonableness of
    the Supervising Judges order to destroy the IAP Documents.

[130]

Independent
    Counsel, supported by the Chief Adjudicator, seeks amendments to three collateral
    aspects of the final order. They say that the 15-year retention period is too
    long, that the Chief Adjudicator  not the TRC and NCTR  should conduct the
    notice plan, and that the Supervising Judges order should have included the
    ADR documents.

[131]

For the reasons
    that follow, I am in substantial agreement with the decision of the Supervising
    Judge and would dismiss Canadas cross-appeal. I would, however, vary the order
    in the court below to include the ADR documents and to require the Chief
    Adjudicator to conduct the notice plan.

(1)

Are the IAP Documents
    government records?

[132]

The threshold
    question on the cross-appeals is whether the IAP Documents are government
    records as defined in the federal privacy, access to information and archiving
    legislation  that is, records under the control of a government institution.

[133]

There are two
    significant consequences if the IAP Documents are government records.

[134]

The first is
    that no government record can be disposed of, except with the consent of the
    Librarian and Archivist because of s. 12(1) of the
Library and Archives of
    Canada Act
. That section reads

12.

(1) No government or ministerial record, whether or
    not it is surplus property of a government institution, shall be disposed of,
    including by being destroyed, without the written consent of the Librarian and
    Archivist or of a person to whom the Librarian and Archivist has, in writing,
    delegated the power to give such consents.

[135]

According to
    Canada, this section prevents anyone other than the Librarian and Archivist
    even the court  from ordering the destruction of a government or ministerial
    record. It says the Supervising Judges order is contrary to law because IAP Documents
    are government records. As I find that the IAP Documents are not government
    records, it is not necessary to explore this proposition, which the Supervising
    Judge rejected in obiter.

[136]

The second
    implication of the IAP Documents being government records, which I will discuss
    further below, is that they would be subject to transfer and disclosure without
    the consent of the IAP claimant under the
Privacy Act, Access to Information
    Act
and
Library and Archives of Canada Act
.

[137]

In most cases,
    once the information is disclosed through those acts, there is no further limitation
    on how it may be used.

[138]

Canada, the TRC
    and the NCTR argue that the IAP Documents are under the control of a government
    institution, AANDC. Canada and the TRC note that possession generally suffices
    for control, and Canada possesses the IAP Documents through the Secretariat and
    the SAO, branches of AANDC.

[139]

These parties
    also say that the Supervising Judge erred in concluding that the documents
    could be subject to the access and privacy legislation for a limited time.
    Either the documents are within the scope of the legislation or they are not.

[140]

Finally, they
    argue that references in the IRSSA and in the Guide to the federal legislation
    mean that as a matter of contract, the IAP Documents are government records.
    This is at odds with their argument that the parties cannot contract into and
    out of the federal legislation, an argument with which I agree.

[141]

As I will
    explain, whether the IAP Documents are government records subject to the
    federal legislation turns on whether they are under the control of a government
    institution. That in turn depends on factors such as who possesses the records,
    the independence of the entity in possession of the records, the nature and
    origin of the records, and whether or not possession is constrained by the
    court. References to the federal legislation in the IRSSA are more
    appropriately considered in the analysis of whether the order was reasonable in
    light of the expectations of the parties, and other factors.

[142]

In my view, the
    IAP Documents are under the courts control, but not under AANDCs control.
    They are not government records. While possession may often suffice for
    control, this is not always the case. When the government is in possession of
    records only as a result of litigation, and is constrained in its use of those
    records by the court process or a specific court order, those records are not
    under the control of a government institution.

[143]

As mentioned, I
    agree with the cross-appellants that the parties could not contract into the
    federal legislation. Because the IAP Documents are not government records, those
    acts also do not apply during the retention period. To that extent, I
    respectfully disagree with the reasons of the Supervising Judge.
    Notwithstanding that conclusion, IAP Documents in the possession of the
    government during the retention period are subject to strict confidentially in
    accordance with the IRSSA.

(a)

Statutory context

[144]

Three federal statutes
    govern government records: the
Privacy Act
, the
Access to Information
    Act
and the
Library and Archives of Canada Act
.

[145]

The purpose of
    the
Privacy Act
, as its name suggests,

is to protect the privacy
    and integrity of individuals personal information held by government
    institutions and to provide individuals with a right of access to
    government-held information about themselves. It limits the governments
    collection, use, and disclosure of personal information.

[146]

The purpose of
    the
Access to Information Act
is to provide transparency and
    accountability to government operations by making government information available
    to the public and by providing a public right of access to that information,
    subject to limited exceptions and under the oversight of an independent body.
    The legislation promotes transparency and aims to enhance democracy:
Canada
    (Information Commissioner) v. Canada (Minister of Defence)
, at para. 15.

[147]

Section 4(1) of
    the
Access to Information Act
gives an overriding right of access to
    Canadian citizens or permanent residents, to, with some exceptions, any record
    under the control of a government institution. Section 19 provides that the
    head of a government institution shall refuse to disclose a record that
    contains personal information unless the information falls within one of the
    exceptions in s. 8 of the
Privacy Act
. In addition to those discussed below,
    the exceptions include disclosure to Library and Archives Canada for archiving
    purposes and disclosure to others for research or statistical purposes.

[148]

The
Library
    and Archives of Canada Act
governs, among other things, the preservation,
    disposal, and destruction of government records.

[149]

The preamble to
    that act sets out its purposes. These include (a) to preserve Canadas
    documentary heritage for the benefit of present and future generations; (b) to
    provide an institution that is a source of enduring and accessible knowledge,
    thereby contributing to the cultural, social and economic advancement of
    Canada; ... and
(d) to serve as a continuing memory of the government of
    Canada and its institutions
(emphasis added).

[150]

The relevant
    parts of these statutes apply only to government records: see e.g.
Privacy
    Act,
ss. 7-10, 12;
Access to Information Act
, s. 4;
Library and
    Archives of Canada Act
, ss. 2, 12.

[151]

A government
    record is defined in s. 2 of the
Library and Archives of Canada Act
as
    a record that is under the control of a government institution. Thus, a
    document is only a government record when a government institution has
    control of it.

[152]

Government
    institution has the same meaning in the
Library and Archives of Canada Act
as in s. 3 of the
Privacy Act
, and s. 3 of the
Access
    to Information Act
. Those acts define government institution as
    any department or ministry of state of the Government of Canada, or any body
    or office, listed in Schedule I.
[6]

[153]

Of note for this
    appeal, the Department of Indian Affairs and Northern Development, the legal
    name for AANDC, is a government institution listed in the schedules of the
Privacy
    Act
and the
Access to Information Act.

[154]

Control, unlike
    government institution, is not defined by statute.

(b)

Judicial interpretation of under the control of a government
    institution

[155]

With one notable
    exception, a decision of the Federal Court discussed below, the meaning of under
    the control of a government institution has derived from
Access to
    Information Act
cases.

[156]

Those cases have
    explained that control should be given its ordinary and popular meaning, and
    interpreted broadly and liberally to achieve the purpose of the
Access to
    Information Act
: see
Canada (Information Commissioner) v. Canada
    (Minister of National Defence),
at para. 48.

[157]

The Supreme
    Court, in
Canada (Information Commissioner) v. Canada (Minister of National
    Defence),
explained that courts have considered various forms of control,
    but cautioned that its meaning cannot be stretched beyond reason, at para. 48:

In reaching a finding of whether records are "under the
    control of a government institution", courts have considered
    "ultimate" control as well as "immediate" control,
    "partial" as well as "full" control, "transient"
    as well as "lasting" control, and "de jure" as well as
    "de facto" control. While "control" is to be given its
    broadest possible meaning, it cannot be stretched beyond reason. Courts can
    determine the meaning of a word such as "control" with the aid of
    dictionaries. The Canadian Oxford Dictionary defines "control" as
    "the power of directing, command (under the control of)" (2001, at p.
    307). In this case, "control" means that a senior official with the
    government institution (other than the Minister) has some power of direction or
    command over a document, even if it is only on a "partial" basis, a
    "transient" basis, or a "de facto" basis.

[158]

The Supreme
    Court also said that [t]he contents of the records and the circumstances in
    which they came into being are relevant to determine whether they are under the
    control of a government institution for the purposes of disclosure under the
    Act.

[159]

Possession, as
    noted in that case, often plays a leading role in determining control: at para.
    54. Generally, a government institutions possession of records, whether in a
    legal or corporeal sense, is sufficient for such records to be subject to the
Access
    to Information Act
:
Canada Post Corp. v. Canada (Minister of Public
    Works)
, [1993] 3 F.C. 320 (T.D.), at pp. 346-47, per Rothstein J., affd by
[1995] 2 F.C. 110 (C.A.)
.

[160]

Even without
    physical possession, a government institution may still control a record if a
    senior official of the government institution, based on all relevant factors,
should
be able to obtain a copy of the record:
Canada (Information Commissioner) v.
    Canada (Minister of National Defence),
at para. 56 (emphasis in original).
    The relevant factors include the substantive content of the record, the
    circumstances in which it was created, and the legal relationship between the
    government institution and the record holder.

[161]

Notably, confidentiality
    agreements in contracts have been held not to negate government control  the
Access
    to Information Act
, for instance, applies to any record, or information in
    a record, which happens to be within the custody of the government regardless
    of the means by which that custody was obtained:
Rubin v. Canada (Minister
    of Foreign Affairs and International Trade)
, 2001 FCT 440.

[162]

However, it has
    been held that restrictions on possession imposed by the court
, such as the implied undertaking
    rule
, may preclude a government institutions control over documents:
Andersen
    Consulting v. R.
, [2001] 2 F.C. 324 (T.D.), at para. 17; but see
Canadian
    Imperial Bank of Commerce v. Canada (Chief Commissioner, Human Rights
    Commission)
, 2007 FCA 272, 70 Admin. L. Rev., which distinguished statutory
    restrictions on the basis that s. 4 of the
Access to Information Act
begins with the words notwithstanding any other Act of Parliament.

[163]

In
Andersen
    Consulting
, a decision relied upon by the Supervising Judge, Hugessen J. of
    the Federal Court held that the
National Archives of Canada Act
[7]
did not prevent an order for the disposal of records obtained by Canada through
    litigation.

[164]

He distinguished
    the case before him from other cases that had found documents to be under
    government control, despite expectations of confidentiality. In the case before
    him, unlike those cases, the law itself through the implied undertaking rule
    imposed a condition on the documents before they came into the possession of
    the government. That rule, derived from the courts inherent jurisdiction,
    bound the government to deal with the documents only as permitted by the
    undertaking. The documents were not therefore under the governments control.

(c)

Application

[165]

Canada, and
    those who support its position, claim that AANDC, a listed government
    institution, controls the IAP Documents through the Secretariat and the SAO. I
    will explain why I disagree.

(i)

The Secretariat

[166]

The Secretariats
    independence from the listed government institution, AANDC, for administering
    the adjudicative functions of the IAP, and the nature and origin of the IAP
    Documents, lead me to conclude that those documents are not under the listed
    government institutions control.

[167]

In all ways
    material to this appeal, the Secretariat is an organization independent of
    AANDC.

[168]

At the outset,
    it is critical to understand that the IAP was
not
a federal government
    program. It was the product of the court-approved settlement of class actions
    and other litigation in which Canada was a defendant and was overseen by the
    court through the Chief Adjudicator, a court-appointed officer of the court.

[169]

From the very inception
    of the IRSSA, it was recognized that although Canadas administrative
    infrastructure was required to carry out the settlement, it was vital to ensure
    that the court, not Canada, was in control of the process.

[170]

This concern is
    not unique to this settlement. It arises frequently in the settlement of class
    actions when the defendant is proposed as the administrator of the settlement.
    The defendants resources and infrastructure may make it well equipped to carry
    out the administration of the settlement. In very large claims, such as claims
    against the state, it may be the only entity capable of administering the
    settlement. But in every such case the court approving the settlement has a
    responsibility to ensure that the defendant,
qua
administrator, is not
    able to manipulate the administration of the settlement for its purposes.

[171]

It was because
    of this concern that Winkler J. conditionally approved the IRSSA in
Baxter
,
    at paras. 37 and 38, requiring that the parties ensure Canada could not
    directly or indirectly influence the administration of the IAP:

[T]he court has a general concern whenever a defendant proposes
    to change roles and become the administrator of a settlement. There must be a
    clear line of demarcation between the defendant as litigant and the defendant
    as neutral administrator. Further,
there must be an express recognition by
    the defendant proposed as administrator that the settlement is being
    implemented and administered in a court supervised process and not subject to
    the direction of the defendant either directly or indirectly
. The difficulty
    in drawing the distinction, and adhering to the underlying concept, is the
    reason why the court must be especially circumspect when considering the
    approval of a defendant as administrator. The line is even more blurred in this
    case where Canada, as defendant, will still be an instructing respondent in
    respect of individual claims made under the IAP.

In order to satisfactorily achieve this requisite separation,
the
    administrative function must be completely isolated from the litigation
    function with an autonomous supervisor or supervisory board reporting
    ultimately to the courts. This separation will serve to protect the interests
    of the class members
and insulate the government from unfounded conflict of
    interest claims. ... [T]he requisite independence and neutrality can be
    achieved
by ensuring that the person, or persons, appointed by Canada with
    authority over the administration of the settlement shall ultimately report to
    and take direction, where necessary, from the courts and not from the government
.
    [Emphasis added.]

[172]

This was
    confirmed by the IRSSA approval and implementation orders, which were designed
    to give effect to the courts ultimate control of the IAP, through the Chief
    Adjudicator.

[173]

A structure was
    therefore established to provide the necessary level of autonomy. At the top of
    the structure is the Chief Adjudicator of the Secretariat, who is an officer of
    the court, appointed pursuant to court order under the IRSSA. The Chief
    Adjudicator is responsible for the supervision of the IAP and of the
    adjudicators who decided IAP applications. The Secretariat supports and reports
    to him. The Chief Adjudicator is accountable to the court.

[174]

The Secretariat
    administers the IAP. It was initially established in 2007 as an autonomous
    branch of Indian and Residential Schools Resolution Canada (IRSRC), which was
    an existing government department. In 2008, IRSRC integrated into AANDC. In
    addition to its adjudicative functions, the Secretariat provides secretarial
    and administrative support for the Chief Adjudicator and functions as the
    registry of the IAP. As such, and on behalf of the Chief Adjudicator, it retains
    possession of the documents provided to and generated by the IAP.

[175]

Save for
    specific financial, funding, auditing and human resource matters, the
    Secretariat is under the direction of the Chief Adjudicator and is independent
    from AANDC. The Secretariat's employees work in separate office space with
    separately keyed entrances.

[176]

The
    Secretariats independence is reflected in its handling of IAP Documents. The
    Secretariat uses the same digital database as the SAO, but that database
    functions with an asymmetrical access system. That system allows the
    Secretariat and SAO to access different, but overlapping, sets of records. Electronic
    records belonging to the Secretariat may be transferred to the SAO, but only
    after the Secretariat grants access permission. The Secretariat maintains a set
    of paper files separate from AANDC. It also keeps a secure database of hearing
    transcripts, and a set of unredacted IAP and ADR decisions.

[177]

The Secretariat
    is not a listed government institution, but it falls under AANDC, which is listed.
    Significantly, other institutions that operate independently from the
    department they are under, such as the Military Police Complaints Commission,
    are separately listed as government institutions in the schedules.

[178]

The IAP
    Documents  documents relating solely to the Secretariats adjudicative function
     are under the control of the Chief Adjudicator, not AANDC. It is the Chief
    Adjudicator, overseen by the court, who controls the management and
    distribution of IAP Documents in accordance with the IRSSA. And the Chief
    Adjudicator does not answer to AANDC.

[179]

Were the head
    of AANDC to receive an access to information request  say a request for a
    claimants application form, a transcript of a claimants evidence or an
    adjudicators decision  it would have no reasonable legal or practical
    expectation that it could obtain copies of such IAP Documents from the
    Secretariat. The legal firewall established by the approval orders and the
    implementation orders would prevent it. The Chief Adjudicator would be
    duty-bound to refuse the request and the court would support that refusal. That
    may not be the case for documents of a different nature, such as those relating
    to funding, auditing, and human resources  documents for which AANDC would
    have a much stronger claim for control.

[180]

The Secretariat,
    overseen by the Chief Adjudicator, enjoys significant, judicially-mandated and
    judicially-protected independence from AANDC for the administration of the IAP.
    IAP Documents in its possession are simply not under the control of AANDC.

(ii)

The SAO

[181]

The SAO, unlike
    the Secretariat, is not an autonomous branch of AANDC. However, as a litigant,
    its possession of information and documents obtained through the IAP is limited
    to the purposes for which they were provided  to litigate IAP claims. That
    constraint on its possession is through the courts inherent jurisdiction, and
    based on the rationale underlying the implied undertaking rule. The IAP
    Documents  derived from that information and those documents  are not under
    its control.

[182]

The SAO carries
    out Canadas functions as a litigant under the IAP. The SAO is part of a
    section of AANDC known as the Resolution and Individual Affairs Sector (RIAS).
    RIAS is responsible for paying compensation for settlements reached under the
    IAP. The SAO is responsible for representing Canada at IAP hearings, including
    challenging IAP claims on behalf of Canada. The SAO also performs Canada's
    document disclosure obligations for individual IAP claims. In these capacities,
    the SAO possesses a complete set of IAP Documents.

[183]

In my view, the
    implied undertaking rule is not a precise fit for the IAP Documents. However,
    applying the rationale underlying the rule to these documents  documents made
    and obtained through a litigation process within a court-approved settlement
    agreement  to limit their use to the purpose for which  they were produced, is
    a harmonious exercise of the courts inherent jurisdiction.

[184]

It is
    well-established that a superior court has inherent jurisdiction to ensure
    access to justice, protect the rule of law and preserve the integrity of the
    administration of justice: see e.g.
R. v. Cunningham
, 2010 SCC 10,
    [2010] 1 S.C.R. 331, at para. 18.

[185]

Lord Dyson in
Al
    Rawi v. The Security Service
, [2011] UKSC 34, [2012] 1 A.C. 531, at paras.
    20-22, observed that, absent statutory regulation, the court has an
    untrammelled power to manage litigation in whatever way it considers necessary
    or expedient in the interests of justice so long as it does not alter
    substantive procedural law, such as natural justice.

[186]

Often, the
    question is not whether the court has jurisdiction, but whether it should use
    it. Because of its breadth, judges must carefully exercise this power. As
    Binnie J. warned, the very plenitude of this inherent jurisdiction requires
    that it be exercised sparingly and with caution:
R. v. Caron
, 2011 SCC
    5, [2011] 1 S.C.R. 78, at para. 30.

[187]

The inherent
    jurisdiction of the court extends to control over the use and disclosure of documents
    derived from its process. Dickson J. expressed this principle in
Nova Scotia

(A.G.) v. MacIntyre
, [1982] 1 S.C.R. 175, at p. 189: Undoubtedly every
    court has a supervisory and protecting power over its own records. Access can
    be denied when the ends of justice would be subverted by disclosure or the
    judicial documents might be used for an improper purpose.

[188]

To protect
    privacy and prevent improper uses, the court exercises its inherent
    jurisdiction to control documents and its own process in a variety of ways,
    including issuing publication bans, holding hearings in camera, sealing
    information in court proceedings, and enforcing the implied undertaking rule.

[189]

The point is this:
    to ensure access to justice, protect the rule of law and preserve the integrity
    of the administration of justice, the court always maintains control over
    information and documents obtained or originating because of its process. When
    that control is exercised, it constrains others possession of such documents.

[190]

I accept that
    the traditional implied undertaking rule is not tailored to the circumstances
    under which the IAP Documents came into being. That rule has generally been
    confined to documents produced in the course of civil discovery.  In cases that
    settle, its protection continues. However, its protection ends when the
    documents are produced in open court. The IAP Documents, on the other hand,
    were documents obtained and created through a litigation process within the
    settlement of civil litigation.

[191]

That being said,
    the broader principle underlying the implied undertaking fits this context. In
Goodman
    v. Rossi
(1995), 24 O.R. (3d) 359 (C.A.), Morden J.A. examined the
    historical origins of the implied undertaking rule. He referred to
Reynolds
    v. Godlee
(1858), 4 K. & J. 88, in which the court described the rule
    governing the situation as follows:

If, on the other hand, the rule be
    this, that, where documents have been produced in obedience to an order of this
    Court, the Court has a right to say to the person who has obtained their
    production: -- Those documents shall never be used by you except under the
    authority of the Court, the course of proceeding would be intelligible and
    safe, and no inconvenience would ensue to either party.

[192]

After
    considering other early expressions of the rule, Morden J.A. stated,

[T]he principle is based on recognition of the general right of
    privacy which a person has with respect to his or her documents. The discovery
    process represents an intrusion on this right under the compulsory processes of
    the court.
The necessary corollary is that this intrusion should not be
    allowed for any purpose other than that of securing justice in the proceeding
    in which the discovery takes place.
[Emphasis added.]

[193]

He suggested
    that the broader principle was expressed in
Lindsey v. Le Sueur
(1913),
    29 O.L.R. 648, at p. 655 (C.A.). In that case, Meredith C.J.O. said that
    because a party had been "given access to and the use of the documents for
    a particular purpose  there is necessarily an implication that they are not to
    be used for any other purpose." Rosenberg J.A. similarly identified that
    there could be a broader application of the civil implied undertaking rule in
P.
    (D.) v. Wagg
(2004),

71 O.R. (3d) 229 (C.A.), at paras. 29-47.

[194]

Andersen
    Consulting
, in 2001,

is the sole reported decision to have wrestled
    with the issue whether documents obtained through litigation and constrained by
    the courts rules are subject to the archivists sole discretion for disposal
    or destruction. It held they are not:

Documents received by Justice in the discovery process are not
    subject to a merely voluntary condition. Lawyers for the Crown do not have the
    option of refusing to give the implied undertaking: by accepting the documents
    they are bound towards the Court to deal with them only in the way permitted by
    the undertaking. That condition is imposed upon the solicitors and upon the
    department and the government they serve prior to the documents ever coming into
    their possession. Furthermore, the undertaking extends not only to the
    documents themselves but, much more significantly, to all information obtained
    as a result of the discovery process, e.g. through answers to oral questions.
    The Court in extracting the undertaking is concerned not so much with the
    documents as pieces of paper but rather, and significantly, with the
    information they may contain. That information is to remain private unless and
    until it comes out in open Court. While the point does not arise for decision
    herein, I seriously doubt that it could be called "government
    information". It is not in the government's control because the latter's
    possession of it is constrained and restricted by law.

[195]

I agree, in
    particular, with the concluding sentence of this extract. The IAP Documents are
    not in the SAOs control because its possession of them  and Canadas
    possession of them through the SAO  is constrained and restricted by law.

[196]

In my view, the
    application of the broader principle underlying the implied undertaking rule is
    the relevant legal constraint. Having obtained the IAP Documents through a court-controlled
    process, the SAO could only use those documents for the purpose of that process,
    and when the process had run its course, the documents had to be returned or
    destroyed. Its possession of the documents was always constrained by the
    courts inherent jurisdiction and the principle underlying the implied
    undertaking.

(d)

Conclusion

[197]

For these
    reasons, I find that the IAP Documents are not under the control of the
    Secretariat or the SAO. They are therefore not government records and they are
    not subject to the relevant portions of the
Privacy Act
,
Access to Information
    Act,
or the
Library and Archives of Canada Act
.

(2)

Is the order to
    destroy the IAP Documents reasonable?

[198]

Having found
    that the Supervising Judges destruction order was not prohibited by s. 12 of
    the
Library and Archives of Canada Act,
I now turn to the second
    question on the cross-appeal, whether the order was reasonable.

[199]

Canada, the TRC
    and the NCTR challenge the overall reasonableness of the Supervising Judges
    order to destroy the IAP Documents. They say that the IAP Documents are needed
    to preserve the historical record of residential schools. These parties point
    to references to federal legislation in the IRSSA and the Guide and to the
    statement in the IRSSA that all parties other than Canada had to destroy the
    IAP applications immediately upon completion of a claim. They say these
    references support their submission that the IAP Documents were meant to be
    archived by the government. Canada also argues the IAP Documents serve as proof
    of the resolution of claims and are needed to prevent double recovery by
    claimants.

[200]

In my view, the
    Supervising Judges order was reasonable. Ordering the eventual destruction of
    the IAP Documents was within the Supervising Judges supervisory jurisdiction
    as a class action judge. It was a reasonable response to a gap in the IRSSA,
    based on his thorough and thoughtful interpretation of that agreement and the
    surrounding factual matrix.  I will explain.

(a)

Supervisory jurisdiction
    of a class action judge

[201]

The courts
    responsibility under class action legislation

to promote access to
    justice and to protect the interests of class members gives it broad
    supervisory jurisdiction over class proceedings.

[202]

The courts
    supervisory jurisdiction is engaged from the inception of an intended class
    proceeding and continues throughout the stages of the proceeding until a
    final disposition, including the implementation of the administration of a
    settlement or, where applicable, a resolution of all individual issues:
Fantl
    v. Transamerica Life Canada
, 2009 ONCA 377, 95 O.R. (3d) 767, at para. 39.
    That jurisdiction exists independent of any jurisdiction conferred by the
    settlement agreement.

[203]

Class
    proceedings legislation provides the court with a broad, discretional
    jurisdiction to make any order it considers appropriate respecting the conduct
    of a class proceeding to ensure its fair and expeditious determination:
Fantl
,
    at para. 42. Such broad jurisdiction has been held to apply to remedy
    administrative deficiencies in general, and those encountered in the IAP
    specifically:
Bodnar v. Cash Store Inc.
, 2011 BCSC 667, at paras. 118-21;
Fontaine v. Canada (A.G.)
, 2006 YKSC 63, 35 C.P.C. (6th) 134, at para.
    54;
Fontaine v. Canada (A.G.)
, 2014 ONSC 283, [2014] C.N.L.R. 86, at
    para. 157.

[204]

In my view, this
    supervisory jurisdiction provided the Supervising Judge with the most direct
    source of authority to remedy the IRSSAs administrative deficiency on the
    disposition of IAP Documents.

[205]

As I mentioned
    earlier, the IRSSA was silent on the disposition of the documents. There was a
    gap which the Supervising Judge was entitled to remedy in the exercise of his
    administrative jurisdiction and in accordance with the principles embodied in
    the IRSSA, its factual matrix and the evidence before him.

(b)

Reasonableness of
    discretionary order

[206]

The Supervising
    Judges exercise of this broad, discretionary jurisdiction to remedy administrative
    gaps in the IRSSA is owed deference on review. As this court held in
Lavier
    v. MyTravel Canada Holidays
, at para. 20, An appellate court will
    generally be reluctant to interfere with the exercise of discretion by an
    experienced class action judge.

[207]

Deference is
    also owed to his factual findings and interpretation of the IRSSA. The
    Supervising Judges interpretation of the IRSSA reflects his experience and
    expertise in his supervisory capacity. It also reflects his thorough, insightful
    and sensitive analysis of the factual matrix of the agreement.

[208]

Those factual
    findings and interpretations of the IRSSA strongly support his decision to
    order the eventual destruction of IAP Documents. I would not interfere with it.

[209]

The Supervising
    Judge found that near to absolute confidentiality was a necessary aspect of the
    IAP. He noted that privacy and confidentiality concerns were an extremely
    important part of the factual nexus of the negotiation of the IRSSA  lawyers
    for class members and lawyers for the Church entities were concerned to ensure
    the privacy and confidentiality of the IAP process.

[210]

The claimants
    and the alleged perpetrators then relied on the confidentiality assurances in
    the IRSSA in the course of the IAP. Without those assurances the IAP would not
    have functioned, and the IRSSA would not have achieved its goal of
    compensation.

[211]

The Supervising
    Judge also found that the IAP Documents contained the most private and most
    intimate personal information, including allegations of sexual abuse, serious
    physical abuse and atrocious acts committed against children. The documents
    contained first-hand accounts of the suffering and of the harm inflicted on
    the children and the consequences to their physical, mental and serial health.

[212]

Those claims
    were intensely private and difficult to describe in public, particularly
    because, in the toxic environment of the residential schools, some claimants
    had been abused by other students, or were themselves abusers.

[213]

Indeed, the prospect
    of the IAP Documents being archived and potentially disclosed to the public
    caused severe stress and anxiety to Claimants. Having regard to the various
    assurances of confidentiality, the Supervising Judge noted, they regard
    disclosure as a betrayal and an egregious breach of confidence and contrary to
    the IRSSA. The Supervising Judge accepted the evidence before him that the claimants
    would be further abused if the contents of the documents were made available to
    future generations.

[214]

Having found
    that the IAP was intended to be private and confidential, and that claimants
    and alleged perpetrators were given assurances of confidentiality, the
    Supervising Judge was entitled to develop a process to give effect to those
    intentions and assurances, to protect vulnerable class members from
    re-victimization and to preserve the integrity of the IAP. In crafting a
    remedy, he was entitled to consider what the claimants were told, in the Guide

or elsewhere, about the disposition of their records.

[215]

In my view, the
    Supervising Judges order was a reasonable response, harmonious with the IRSSA,
    to an administrative gap over what to do with highly-sensitive documents after
    their intended use had been fulfilled.

[216]

None of the
    cross-appellants arguments convince me otherwise.

[217]

First, the
    Supervising Judge gave a reasonable interpretation to the statement in Schedule
    D that all copies [of the IAP Application Form] other than those held by the
    Government will be destroyed on the conclusion of the matter.  Canada was to
    retain the documents during a retention period contemplated by the IRSSA when
    they might be required for legal proceedings. At the end of that period, they
    would be destroyed.

[218]

In any event, I
    do not think these words can reasonably bear the interpretation suggested by
    Canada. Canada was a defendant. The mere fact that it was not required to
    destroy the IAP Application immediately on conclusion of an individuals claim does
    not imply or import a right to keep all IAP Documents forever, in an archive,
    to share with researchers and others.

[219]

Second, I do not
    agree with the argument that the granularity of the stories of every individual
    survivor who went through the IAP needs to be preserved  in their
    applications, evidence, transcripts and the adjudicators decisions  to ensure
    public confidence in the integrity of the IAP or to ensure confidence and
    transparency in the use of public funds. Public confidence is achieved by
    Canadas participation in the IRSSA and by the courts approval of the agreement
    and its supervision of the compensation process. A public record will be
    preserved through the work of the TRC and the NCTR, which will include
    thousands of individual stories, freely given. The NCTR will preserve the
    history of residential school and the stories of survivors who have willingly
    shared them.

[220]

Nor is the
    preservation of the stories necessary to prevent re-litigation of claims. The
    approval of the settlement provided that all class members who did not opt out
    were deemed to have released their claims. Any class member who made an IAP
    claim and exhausted his or her right of appeal will have no further claim as a
    matter of law, regardless of the outcome of that claim.

[221]

Third, I do not
    agree that the references in Appendix B of the Guide to the
Privacy Act
and
    the
Access to Information Act
mean that the IAP Documents are to be
    under the control of the government. As Canada itself argues, parties cannot
    contract into or out of the federal legislation. And, as I have found, the
    documents are not under government control, and thus not subject to those statutes.
    Mere references to those acts in a document that was not part of the IRSSA does
    not bring the entire process into the scope of the federal legislation.

[222]

There is nothing
    in the IRSSA, the application form or the Guide that would reasonably lead a
    claimant to understand that his or her intensely private story might be
    preserved and made available to future generations, in the hands of the very
    party that funded and supervised the residential school in which he or she was
    abused. There is nothing to indicate that the information may be shared with
    the TRC or the NCTR without their consent. There is nothing that tells
    claimants that in return for compensation, they are surrendering control of
    their stories.

[223]

On the contrary,
    claimants are assured that their personal stories of abuse will be kept
    confidential and used for one purpose only  to obtain compensation under the
    IAP. Indeed, the express provision that the claimant may choose to deposit their
    transcript in an archive supports the conclusion that the parties intended that
    the choice of archiving was to be the claimants, not the governments.

[224]

At most, the
    Guide suggested personal information may be held in the National Archives for
    about 30 years. And the Guide, a document that is not part of the IRSSA or the
    approval order, stated that the IAP would deal with personal information in
    accordance with the
Access to Information Act
,
Privacy Act
, and
    any other applicable law. Those statements suggest that the government would
    hold information because it was required to by law, not by choice. As I have
    explained, the underlying understanding was mistaken, as the IAP Documents are
    not government records.

[225]

I also note that
    the Guide does not inform claimants of the potential for disclosure under
    federal legislation. It does not explain that privacy protection ceases 20
    years after the death of the individual, or 110 years after his birth, so that private
    information could be disclosed to his children, family members, friends or
    members of his community:
Privacy Act
, s. 3 personal information (m);
Privacy
    Regulations
, SOR/83, s. 6(c). Nor that other individuals identified in IAP
    Documents, including alleged perpetrators, may be able to obtain any documents
    in which they are mentioned:
Privacy Act
, s. 12. Nor that the head of
    the government institution holding the documents always has the discretion to
    disclose the documents if, in his or her view, the public interest outweighs
    the individuals privacy interest:
Privacy Act
, s. 8(2)(m)(i). And it
    did not inform claimants that records archived with Library and Archives Canada
    may be accessed by anyone granted Departmental Research Status, nor that the
    TRC had been granted this status.

[226]

Finally, I
    disagree that retention of all IAP Documents is necessary to preserve the
    historical record of residential schools.

[227]

The IRSSA gave
    careful consideration to how the history of residential schools would be
    preserved. It gave the TRC the task of creating a permanent record of the
    residential school system and it created the NCTR as a permanent repository for
    documentation related to residential schools, including some documents used in
    or created by the IAP.

[228]

But the IRSSA
    put the survivors, not Canada and not anyone else, in control of their own
    stories.  Many survivors  thousands  have chosen to share their stories with
    the TRC. Others have shared or will share some or all of their documents with
    the NCTR. Those who have not chosen to do so, or do not wish to do so, should
    not have to run the risk that any part of their stories will be stored, against
    their will, in a government archive and possibly disclosed at some time, even
    far into the future. This unacceptable risk would be antithetical to the very
    purpose of the IRSSA  healing and reconciliation.

[229]

In my view, this
    was done advisedly  that is, to take the preservation of the history of
    residential schools out of the hands of Canada, which bore  responsibility for
    the residential school system, and into the hands of the survivors, under the
    oversight of an independent body.

[230]

The Supervising
    Judges disposition of the IAP Documents, together with the right of claimants
    to tell their stories to the TRC and to archive their records with the NCTR is
    faithful to the intent of the IRSSA and provides an appropriate balance between
    preserving the history of residential schools and protecting claimants
    privacy.

[231]

I would
    therefore dismiss this cross-appeal.

(3)

Collateral
    issues

[232]

I will address
    the remaining issues in the cross-appeal under this heading. I will also
    address submissions by the TRC on the Supervising Judges costs award.

(a)

The retention period

[233]

The Supervising
    Judge concluded that the IAP Documents should be destroyed after a 15-year
    retention period, during which they might be disclosed for the very limited
    purpose of criminal or child protection proceedings. During this period, claimants
    would have an opportunity to archive their documents with the NCTR. He
    concluded this reflected the intent of the parties as expressed in the IRSSA.
    His selection of 15-year period was based on the ultimate limitation period
    in the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B
.

[234]

While I agree
    with the submissions of the Chief Adjudicator and Independent Counsel that a
    longer retention period increases the risk of accidental disclosure, in my
    view, the 15-year period is not unreasonable, and I would not interfere with it.
     The 15-year period recognizes that the IAP Documents may unexpectedly become
    relevant years after the claim process appears to have been completed. For
    example, this could be for legal purposes such as the late filing of appeals
    where an extension of time would be granted, to pursue claims of solicitors
    negligence, to investigate issues of misconduct, or to deal with complications
    in the administration of the notice program and the transfer of documents to
    the NCTR with the claimants consent.

(b)

The notice program

[235]

The next
    question is whether the notice program should be administered by the TRC, the
    NCTR or by some other entity.

[236]

I concluded
    earlier that the Supervising Judge had jurisdiction to establish a notice
    program to inform claimants of their rights and to permit them to exercise those
    rights. He directed that the TRC or the NCTR may give notice to claimants that,
    with their consent, their IAP applications, transcripts or audio recordings of their
    evidence and the adjudicators decisions could be archived at the NCTR,
    provided personal information about alleged perpetrators or affected parties
    was redacted. He stated that the terms of the notice program would be settled
    at another hearing. He found that the precise terms of the notice program would
    have to be designed in a way that respects what is a very difficult, very
    private and very personal decision.

[237]

I agree with the
    submissions of Independent Counsel, supported by the Chief Adjudicator, that it
    is unreasonable for either the TRC or the NCTR to conduct the notice program.
    The notice does not fall within the mandate of either entity and, most
    importantly, it would be a breach of confidence to provide them with the
    information necessary for a notice program.

[238]

While I expect
    both could provide a meaningful contribution to the program, particularly since
    the NCTR would be housing the archived documents, in my opinion, the notice
    program should be carried out by the Chief Adjudicator, on such terms as may be
    approved by the Supervising Judge. As the Supervising Judge indicated, this
    should be determined after an evidence-based inquiry.

[239]

Given the
    passage of time since the IAP began, and the advanced age of some of the
    claimants, I repeat the Supervising Judges entreaty that the notice program
    should be undertaken at the earliest possible time. It behooves all parties to
    cooperate in this undertaking.

(c)

Documents produced in
    the alternative dispute resolution process

[240]

The Supervising
    Judge did not explicitly address the disposition of the documents produced in
    the ADR process that preceded the IRSSA. Article 15.02 of the IRSSA and
    Schedule N para. 11 provided that the pending claims under the dispute
    resolution process would be transferred to the IAP and that documentation from
    the dispute resolution process could be transferred to the TRC. The Secretariat
    holds the records of all claims in which there was a dispute resolution hearing
    before the IRSSA or where a claim in progress was transitioned to the IAP. It
    has been held that the IAP is a successor to the dispute resolution process:
Fontaine
    v. Canada (A.G.)
, 2012 BCSC 839, at para. 31.

[241]

Since the intent
    of the IRSSA was to roll all existing litigation into the IAP, the records of
    the predecessor process are subject to the courts supervisory jurisdiction.
    Consistency and fairness require that they be treated in the same manner as the
    IAP Documents.

(d)

Costs award

[242]

The TRC appeals
    the Supervising Judges order that it pay costs to Independent Counsel in the
    amount of $35,000, all-inclusive. In ordering those costs, the Supervising
    Judge acknowledged that there was some attraction to making no order as to
    costs, partly because the TRC, although not a party to  the IRSSA, had an
    important role to play in it.

[243]

However, he was persuaded
    to award costs for two reasons. First, the important role played by Independent
    Counsel in the proceedings for IAP claimants. Second, in bringing its RFD the
    TRC could have anticipated that it would have to bear the costs of discharging
    its mandate under the IRSSA, including the costs of those who opposed the RFD.

[244]

The TRC has not
    established that the Supervising Judge made an error in principle in the
    exercise of his discretion as to costs. Nor is the award plainly wrong:
Hamilton
    Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, para. 27.  There
    is no merit to the suggestion that the TRC was denied procedural fairness by
    not having an opportunity to deliver further reply costs submissions when it
    had already replied to the submissions of Independent Counsel. I would
    therefore dismiss this appeal.

G.

CONCLUSION

[245]

The IRSSA
    established a comprehensive framework for the compensation of survivors and preservation
    of the history of residential schools, guided by the principle that the
    survivors should control the fate of their own stories. That provided them with
    the right to archive the stories they told in the claims process for survivors
    of serious sexual, physical or psychological harm. It also provided, and was
    structured accordingly to do so, that no one else could keep those stories
    against their wishes, not even the government, except in accordance with the
    process designed to enforce their right to access justice for the harms done to
    them.

[246]

In my view, the
    Supervising Judges order was harmonious with this principle. Save for two
    procedural details, I would affirm it in its entirety.

H.

Disposition

[247]

For these
    reasons, the order of the Supervising Judge is varied to provide: (a) that the
    Chief Adjudicator shall conduct the notice program; and (b) that the ADR
    documents are to be dealt with in the same manner as the IAP Documents.

[248]

The appeals and
    cross-appeals are otherwise dismissed.

[249]

No submissions
    were made as to costs. In view of the public importance of this appeal, it is
    arguable that there should be no order as to costs. I would, however, provide
    that any party seeking costs may deliver written submissions, no more than five
    pages in length, excluding the costs outline, within 30 days of the release of
    these reasons. Any party responding to those submissions may deliver its
    submissions, also no more than five pages, within 30 days of receipt.

G.R. Strathy C.J.O.

I agree J. MacFarland
    J.A.

Sharpe J.A. (Dissenting):

A.      OVERVIEW

[250]

I agree with the
    Chief Justice, for the reasons he gives, that the appeals of the Catholic
    Entities should be dismissed. However, I respectfully disagree with his
    conclusion that the cross-appeals brought by the Truth and Reconciliation
    Commission (TRC) and Canada should be dismissed. For the following reasons, I would
    allow the cross-appeals on the ground that the IAP documents held by Canada
    through the Settlement Agreement Operations Branch (SAO) of Aboriginal Affairs
    and Northern Development Canada (AANDC) are government records, and set aside
    the Supervising Judges order to the extent that it requires the destruction of
    the IAP documents in the possession and control of the SAO.

[251]

In my view, the
    IAP documents held by Canada, which include the decisions of IAP adjudicators
    ordering Canada to pay claimants millions of dollars, fall squarely within the
    legal definition of government records. The IAP documents are therefore subject
    to the regime mandated by Parliament in the
Privacy Act
, the
Access
    to Information Act
, and the
Library and Archives of Canada Act
for the
    protection of private information, access to government records and the
    preservation of Canadas documentary heritage for the benefit of present and
    future generations.

[252]

In my respectful
    view, the legal doctrines relied on by the Supervising Judge, namely, the
    implied undertaking rule and breach of confidence, do not apply to the IAP
    documents held by Canada and do not remove them from the category of government
    records subject to federal legislation. Nor does the doctrine of inherent
    jurisdiction, applied by the Chief Justice, justify exempting the IAP documents
    from the legislation. In my view, neither the Supervising Judge nor the Chief
    Justice offers any valid legal basis to justify an order for the destruction
    the IAP documents possessed and controlled by Canada contrary to the express
    provisions of the federal legislation.

[253]

I recognize that
    the IAP process involved claimants revealing traumatic and highly sensitive
    personal matters to the adjudicators who decided their claims. I fully accept
    that claimants are entitled to the protection afforded by the law to such
    highly sensitive matters.

[254]

The IAP process
    was, however, also an integral part of Truth and Reconciliation, an important
    moment in Canadian history when all Canadians, aboriginal and non-aboriginal,
    confronted the shocking treatment of generations of aboriginal children in the
    Residential School system and searched for ways to repair the damage.

[255]

The TRC took the
    lead in resisting the request that the IAP documents be destroyed. In a letter
    to Dean Mayo Moran, Chair of the IAP Oversight Committee, quoted at para. 239
    of the Supervising Judges reasons, Justice Murray Sinclair, Chair of the TRC,
    explained why:

The preservation of IAP records is fundamental to maintaining a
    full and complete record of Residential Schools. Future generations will never
    know what went on in the schools if the records are lost. It will be easy to
    dismiss second and third hand accounts of that history without the first-hand
    accounts to add their weight of truth.

As the TRC puts it in its factum, reconciliation
    requires knowledge, not destruction of our past.

[256]

The three
    statutes to which I have referred define a carefully considered balance between
    the conflicting interests at issue on this appeal: individual privacy and
    confidentiality on the one hand and the public interest in the preservation of
    Canadas history on the other.

[257]

The legislative
    scheme extends a significant level of protection for the privacy and
    confidentiality of IAP claimants. Finding the IAP documents to be government
    records, to be archived rather than destroyed, will not have the effect of making
    them immediately or readily available to the public as is suggested by many of
    the submissions we have heard. The effect will be, rather, to subject the IAP
    documents to a legislative scheme carefully designed to balance the interests
    of privacy and confidentiality with the interest of preserving Canadas
    historical heritage, a balance that extends generous protection to the
    interests of privacy and confidentiality by preventing disclosure until many
    years after the death of the IAP claimant.

[258]

I also agree
    with Canada and the TRC that the terms of the IRSSA did not contemplate the
    destruction of the IAP documents but rather point to their treatment under the
    statutory scheme as government records.

B.      ARE THE IAP DOCUMENTS GOVERNMENT RECORDS?

[259]

The central
    issue on this appeal is whether the IAP documents are government records within
    the meaning of the
Privacy
,
Access to Information
and
Library
    and Archives of Canada
Acts. As the Chief Justice has carefully set out,
    records that are under the control of a government institution are
    government records that are subject to the regime of these three closely
    related statutes.

[260]

It is not
    disputed that the SAO of AANDC is a government institution, and that it has
    physical possession of copies of the IAP documents in its capacity as the
    department of government responsible for carrying out Canadas functions as a
    defendant in the IAP. It follows that if SAOs possession amounts to control
    of the IAP documents, the three-statue regime for the protection of privacy and
    preservation of government documents applies.

[261]

Control is not
    a defined term in the legislation, but there is an extensive body of
    jurisprudence from the Federal Court holding that control is to be given a
    broad and liberal interpretation consistent with its ordinary and popular
    meaning. The tenor of that jurisprudence is thoroughly explained in the Chief
    Justices reasons and needs no repetition here.

[262]

As I read the
    Chief Justices reasons, he agrees that but for an expansion of the implied
    undertaking rule by way of the inherent jurisdiction doctrine, SAO has control
    of the IAP documents within the meaning of the legislation. Before explaining
    why I cannot agree that either the implied undertaking rule or the inherent
    jurisdiction doctrine apply to the IAP documents, I propose to outline the
    statutory scheme that I say does apply.

(1)

The Legislation

[263]

The purpose of
    the
Privacy Act
,

as stated in s. 2, is to extend the present
    laws of Canada that protect the privacy of individuals with respect to personal
    information about themselves held by a government institution and that provide
    individuals with a right of access to that information. Personal information
    is broadly defined in the
Privacy Act
and would unquestionably include
    the information about claimants revealed by the IAP documents.

[264]

The purpose of
    the
Access to Information Act
, as stated in s. 2, is to provide a right
    of access to information in records under the control of a government
    institution in accordance with certain principles: namely that government
    information should be available to the public, that exceptions to the right of
    access should be limited and specific and that decisions on disclosure of
    government information should be reviewed independently of government.

[265]

Given the
    importance of protecting privacy in personal information and ensuring public
    access to government records, the Supreme Court of Canada has described the
Privacy
    Act
as quasi-constitutional: see
Lavigne v. Canada (Office of the
    Commissioner of Official Languages)
, 2002 SCC 53, [2002] 2 S.C.R. 773, at
    para 24.

[266]

It is common
    ground on these appeals and cross-appeals that the IAP documents contain
    personal information, and that if they are government records, they would
    attract the protection of the
Privacy Act
. When that act is read
    together with the
Access to Information Act
, so long as the records are
    held by the government institution, the legislative scheme protects the right
    of the claimant to access his or her personal information, but precludes others
    from doing so by requiring the head of the government institution to: refuse
    disclosure of the record; disclose only the parts of the record that can
    reasonably be severed from the parts containing personal information; or,
    disclose the personal information for only very limited and specific purposes
    in accordance with the
Privacy Act
: see
Access to Information Act
,
    s. 19(1), s. 25;
Privacy Act
, s. 8(2). Even where the head of the
    government institution has the discretion, under the
Privacy Act
, s.
    8(2)(j), to disclose personal information for research or statistical purposes,
    disclosure is made in a way that ensures the ongoing protection of an
    individuals privacy.

[267]

Canada provided
    evidence of the policies and practices AANDC has developed generally to deal
    with access to information requests for records containing personal information
    while the records are still within its control. These policies and practices
    ensure the protection of the privacy and confidentiality of IAP claimants in accordance
    with the legislative regime.

[268]

The final piece
    of the trilogy of federal legislation is the
Library and Archives of Canada
    Act
. The purposes of the act, described in the preamble, include the
    preservation of the documentary heritage of Canada  for the benefit of
    present and future generations and to create an institution to serve as the
    continuing memory of the government of Canada and its institutions. The
    objects of the Library and Archives of Canada (LAC), as described in s. 7,
    include serving as the permanent repository of  government and ministerial
    records that are of historical or archival value.

[269]

In general, upon
    the expiry of the mandated period of retention by the government department
    that holds the documents, a minimum of two years after last use under the
Privacy Regulations
, s. 4, the disposition of records is dealt with
    pursuant to an arrangement referred to as a Records Disposition Authority (RDA)
    issued by the Librarian and Archivist of Canada. Records considered by LAC to
    be of historic and archival importance must be transferred to LAC. The
    remaining documents can be disposed of by the department when they are no
    longer required for operational or legal reasons.

[270]

Of particular
    significance to this appeal is that s. 12 of the
Library and Archives of
    Canada Act
makes clear that government institutions do not have the option
    of destroying their government records without the approval of LAC:

12(1)
No
    government or ministerial record, whether or not it is surplus property of a government
    institution, shall be disposed of, including by being destroyed, without the
    written consent of the Librarian and Archivist or of a person to whom the
    Librarian and Archivist has, in writing, delegated the power to give such
    consents.

[271]

The IAP documents
    were evaluated by LAC and, in August 2012, LAC and AANDC entered an agreement
    for the transfer of records. LAC subsequently issued an RDA specifying that all
    electronic copies of the Notice of Decision document and Settlement Package
    for each IAP and ADR case must be transferred to it. In addition, records
    relating to strategic aspects of the IAP process and certain other documents
    relating to the ADR process were to be transferred. This latter category of
    documents is uncontroversial and falls outside the class of documents with
    which we are concerned on this appeal. While LAC can issue new directions, the
    only IAP documents covered by the current RDA are the Notices of Decision of
    the IAP adjudicators. AANDC is at liberty to dispose of the remaining
    documents.

[272]

The
Privacy
and
Access
Acts, read together, prescribe a limited period during which
    only the individual has access to his or her personal information by excluding
    from the definition of personal information in the
Privacy Act
,
    information about an individual who has been dead for more than twenty years.
    The
Privacy Regulations
, SOR/83-508, s. 6, also provide, among other
    things, as follows with respect to personal information that has been
    transferred to the control of LAC:

Personal information that has been transferred to
    the control of the Library and Archives of Canada by a government institution
    for archival or historical purposes may be disclosed to any person or body for
    research or statistical purposes where

(a)
the
    information is of such a nature that disclosure would not constitute an
    unwarranted invasion of the privacy of the individual to whom the information
    relates;

(c) 110 years have elapsed following the birth
    of the individual to whom the information relates.

[273]

I
    think it clear that disclosure of the personal information contained in the IAP
    documents transferred to LAC could not be justified under s. (6)(a). Other
    provisions found in s. 6 either would not apply to the IAP documents or would
    require (as with disclosure under the
Privacy Act
,
    s. 8(2)(j)) additional measures to be taken to protect individual privacy.
The
    net result is that although government records are preserved for their historic
    and archival importance, access to the records is highly restricted. For the
    purposes of this appeal, the outcome of the legislative scheme is that the
    personal information of IAP claimants cannot be accessed by anyone other than
    the IAP claimant during the claimants lifetime except for narrow and
    restrictive purposes or in ways that ensure the ongoing protection of
    individual privacy. The combination of the twenty year after death provision in
    the
Privacy Act
and the one hundred and ten years after birth provision
    in the
Library and Archives of Canada Act
protects the information from
    disclosure for a minimum period of twenty years after death of the IAP claimant
    unless the IAP claimant lives past ninety.

(2)

The implied undertaking rule

[274]

In my view, the
    Supervising Judge erred in law in holding that the implied undertaking rule
    applied to the IAP documents and that they were therefore not under the control
    of SAO. He relied on
Andersen Consulting v. Canada
, [2001] 2 F.C.R. 324,
    where the Trial Division of the Federal Court applied the implied undertaking
    rule to order the return or destruction of documents obtained by the government
    through the discovery process in a civil action. When the case settled before
    trial, Canada took the position that it was obliged by law to retain the
    documents and archive them at what is now the LAC under the predecessor to the
Library
    and Archives of Canada Act
. Hugessen J. rejected that contention and
    concluded that as the documents had been obtained through discovery, the
    operation of the implied undertaking rule removed them from government control.

[275]

Assuming,
    without deciding, that
Andersen Consulting
was correctly decided, in my
    view, it has no application to this case. The implied undertaking rule relates
    to the discovery process in civil litigation. The rule, recognized by this
    court in
Goodman v. Rossi
(1995), 24 O.R. (3d) 359 (C.A.), precludes a
    party to a civil action from using information disclosed on discovery for any
    purpose other than the litigation in which the information was produced. In
Juman
    v. Doucette
, 2008 SCC 8, [2008] 1 S.C.R. 157, at para. 27, Binnie J.
    explained the rule as follows:

[T]he law imposes on the parties to civil litigation an
    undertaking
to the court
not to use the documents or answers [obtained
    on discovery] for any purpose other than securing justice in the civil
    proceedings in which the answers were compelled (whether or not such documents
    or answers were in their origin confidential or incriminatory in nature).
    [Emphasis in original.]

[276]

There are two
    rationales for the rule. First, the rule rests on the statutory compulsion
    that requires a party to make documentary and oral discovery regardless of
    privacy concerns:
Juman
, at para. 3. Second, the rule encourages
    complete and candid participation in the discovery process: see
Juman
,
    at para. 26. In
Goodman v. Rossi
, at p. 369, this court adopted the
    following statement (from Paul Matthews and Hodge M. Malek,
Discovery
,
    (London: Sweet & Maxwell, 1992), at p. 253), as a compendious statement of
    these rationales:

The primary rationale for the imposition of the implied
    undertaking is the protection of privacy. Discovery is an invasion of the right
    of the individual to keep his own documents to himself. It is a matter of
    public interest to safeguard that right. The purpose of the undertaking is to
    protect, so far as is consistent with the proper conduct of the action, the
    confidentiality of a partys documents. It is in general wrong that one who is
    compelled by law to produce documents for the purpose of particular proceedings
    should be in peril of having those documents used by the other party for some
    purpose other than the purpose of the particular legal proceedings and, in
    particular, that they should be made available to third parties who might use
    them to the detriment of the party who has produced them on discovery. A
    further rationale is the promotion of full discovery, as without such an
    undertaking the fear of collateral use may in some cases operate as a
    disincentive to proper discovery. The interests of proper administration of
    justice require that there should be no disincentive to full and frank
    discovery.

[277]

In my view,
    neither the implied undertaking rule nor the rationales that underlie it apply
    to the IAP documents.

[278]

The IAP
    claimants were not compelled to produce any of the IAP documents in a discovery-like
    process. They were, of course, required to follow the prescribed procedure to
    make a claim, but it was for them to decide what to submit. That is quite
    different from a party to litigation being compelled to respond in a
    pre-hearing discovery process to requests from the opposing party for documents
    or information they would not otherwise reveal.

[279]

The application
    form, moreover, closely resembled a statement of claim: see
Fontaine v.
    Canada (Attorney General)
, 2014 ONSC 283, at para. 76: The IAP begins with
    an application that appears to serve functions similar to a statement of
    claim. It has never been suggested that a pleading is subject to the implied
    undertaking rule. Nor does the rule apply to documentary or testimonial
    evidence led at a hearing, even when used by the opposing party: see
Juman
,
    at para. 51: When an adverse party incorporates the answers or documents
    obtained on discovery as part of the court record at trial the undertaking is
    spent.

[280]

Even more remote
    from the reach of the implied undertaking rule are the decisions of the IAP
    adjudicators. I see no basis for finding that the final decision in a
    proceeding is caught by the implied undertaking rule. This is particularly
    pertinent because, as I have pointed out, the decisions are the only IAP
    documents to be archived with LAC under the current RDA.

[281]

Canada paid
    millions of dollars of public funds to IAP claimants on the basis of the IAP
    decisions. How could it possibly be that a decision used to justify the
    expenditure of public funds was not a document within the control of the
    government?

[282]

Finally, the
    implied undertaking rule governs the improper use of documents obtained through
    discovery: one party cannot force the other party to disclose a document for
    one purpose and then use document for a different purpose. In my view,
    preserving documents in the national archives does not amount to using, let
    alone improperly using, the documents.

(3)

Inherent jurisdiction

[283]

In his reasons,
    the Chief Justice acknowledges that the implied undertaking rule is not a
    precise fit for the IAP documents. But he then resorts to the doctrine of
    inherent jurisdiction and, referring to the rationale underlying the implied
    undertaking rule, extends it to the IAP documents, thereby removing them from
    the control of the SAO and the reach of the federal legislative regime.

[284]

I respectfully
    disagree with that reasoning. The rationales underlying the implied undertaking
    rule that have been identified in the decisions of this court and the Supreme
    Court of Canada rest on the need to protect the integrity of the discovery
    process in civil litigation. As I have attempted to explain, those rationales
    do not apply to the IAP process.

[285]

If the implied
    undertaking rule and its underlying rationales do not apply, we are left with
    this: applying the legislation and the settled jurisprudence on government
    records and the meaning of control, the IAP documents are government records
    and subject to the regime legislated by Parliament. That regime provides that
    government records can only be destroyed with the written consent of LAC. I
    respectfully disagree that this or any other court has inherent jurisdiction to
    exempt the IAP documents from the reach of the statutory regime because it
    thinks that it would be fairer to all concerned if the documents were
    destroyed.

[286]

In his seminal
    and often quoted article, The Inherent Jurisdiction of the Court (1970) Curr.
    Legal Probs. 23, Sir Jack Jacob states, at p. 24: [T]he court may exercise its
    inherent jurisdiction even in respect of matters which are regulated by statute
    or by rule of court,
so long as it can do so without contravening any
    statutory provision
 (emphasis added). That passage has been quoted with
    approval by the Supreme Court of
Canada and by
    the Supreme Court of the United Kingdom: see
R. v. Caron
, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 32;
Ontario v. Criminal Lawyers Association of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 23;
Al
    Rawi and Others v. The Security Service and Others
, [2011] UKSC 34, [2012] A.C. 531, at para. 18.
Caron
states, at para. 30: O
f course the very
    plenitude of this inherent jurisdiction requires that it be exercised sparingly
    and with caution.
Ontario v. Criminal Lawyers Association of Ontario
cautions, at para. 23: I
t has
    long been settled that the way in which superior courts exercise their powers
    may be structured by Parliament and the legislatures.

[287]

Parliament has
    determined the level of protection to be accorded to personal information in
    government records when balanced with the need to preserve Canadas historical
    heritage. Although this may be less protection than the respondents to the
    cross-appeal seek, and that the Supervising Judge and the Chief Justice think
    is appropriate, it is a generous level of protection and it is the level of
    protection that Parliament has decreed.

[288]

I add here that
    the Supervising Judge made no reference to inherent jurisdiction in his reasons
    and inherent jurisdiction was not raised or argued before this court in either
    oral or written submissions.

[289]

The concerns I
    have identified apply to all of the IAP documents, but I find it particularly
    difficult to justify resorting to the doctrine of inherent jurisdiction in this
    case to order the destruction of the decisions of IAP adjudicators.

[290]

The integrity of
    any judicial or tribunal decision-making process ultimately rests on the
    quality of the decisions it produces.
The Supreme Court of
    Canada has recognized that reasoned judgments are

central to the legitimacy of judicial institutions in the eyes of the
    public:
R. v. Sheppard
, 2002 SCC 26,

[2002]
    1 S.C.R. 869, at
para. 5. In my respectful view, the court should not
    resort 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.

C.      THE TERMS
    OF IRRSA RELATING TO THE DESTRUCTION OF IAP DOCUMENTS

(1)     Standard of review

[291]

I do not propose
    to engage in a lengthy discussion of the standard of review applicable to the
    Supervising Judges interpretation of the IRSSA, and in particular, to his
    conclusion that the agreement explicitly or implicitly provides for the
    destruction of the IAP documents. In my view, whether the standard of review is
    reasonableness, as the Chief Justice suggests, or correctness, this conclusion
    cannot withstand scrutiny.

[292]

I do not,
    however, wish to be taken to agree that the standard of review is reasonableness
    in this case. At issue is an agreement that bound the government of Canada to
    establish one of the most important public inquiries in Canadian history and to
    spend over two billion dollars of public funds. The agreement affects the
    rights of tens of thousands of Residential School survivors, and impacts the
    interests of a long list of religious institutions and alleged perpetrators.
    The agreement relates to a pressing issue of public policy and the righting of
    a dreadful historical wrong.

[293]

The case before
    us, it seems to me, is radically different than the decision of an arbitrator
    resolving a dispute between two private commercial entities, disputing the
    value of a finders fee, that was at issue in
Sattva Capital Corp. v.
    Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633.

[294]

The IRRSA is a
    contract, but it is not a contract that deals with merely private commercial
    interests. It is an agreement that has an overwhelmingly public law flavour and
    has very significant implications for Canada and our aboriginal peoples. Goudge
    J.A. made this very observation in
Fontaine v. Canada (Attorney General)
,
    2013 ONSC 684, 114 O.R. (3d) 263, at para. 56:

I am not sure that the Settlement Agreement can be said to be
    simply a private contract that should be governed only by private law concepts
    like privity. There are arguably aspects of the Settlement Agreement that seek
    to structure relationships between Canada and Aboriginal people. The preamble
    of Sch. N says as much. Moreover, the TRC itself, while a product of the
    Settlement Agreement is established by an Order-in-Council which sets out its
    mandate. These two considerations raise the possibility that the Settlement
    Agreement can be viewed through the lens of public law as well as private law.

And, as the Supervising Judge put it, at para. 88 of
    his reasons: The IRSSA is not a treaty between Canada and its Aboriginal
    peoples, but it is at least as important as a treaty. He has since echoed this
    observation: see
Fontaine v. Canada (Attorney General)
, 2015 ONSC 3611,
    at para. 53.

[295]

In any event,
    even if the standard of review is reasonableness, it is my view that the
    Supervising Judge made extricable errors of law and palpable and overriding
    errors of fact justifying this courts intervention.

(2)     Interpreting the IRRSAs express terms

[296]

The Supervising
    Judge found that the parties bargained for destruction of the documents but,
    despite the fact that the IRRSA dealt at some considerable length with
    confidentiality, he could point to no specific term of the IRRSA that authorized
    the destruction of all IAP documents. In my view, the only references to
    destruction of documents in the agreement and its schedules point to
    preservation of the documents in the hands of Canada as government records, not
    their complete destruction.

[297]

Schedule D,
    Appendix II provides for making the IAP application documents available to the
    government or a church entity. The use to which such documents may be made is
    carefully circumscribed to preclude disclosure to others in violation of the
    promise of confidentiality. Copying and destruction of copies of the
    application form is dealt with, at para. iv, as follows:

Copies will be made only where absolutely necessary and all
    copies
other than those held by the Government

will be destroyed
    on the conclusion of the matter, unless the claimant asks that others retain a
    copy, or unless counsel for a party is required to retain such copy to comply
    with his or her professional obligations. [Emphasis added.]

[298]

This provision
    indicates that the parties did turn their minds to the question of the
    destruction of documents. They specifically provided that documents held by the
    government would
not
be destroyed.

[299]

The Supervising
    Judge, at para. 321 of his reasons, interpreted this provision as providing for
    a retention period, with reference to a provision in Appendix B to the Guide.
    He found that while the IAP documents would be kept confidential, there were
    situations where the government would have to provide information to the police
    if needed for a criminal investigation or if needed in connection with child
    welfare proceedings. He found that the provision stating that all copies other
    than those held by the Government will be destroyed on the conclusion of the
    matter was there precisely because there needs to be a retention period where
    the IAP Documents would be available for criminal and child welfare
    proceedings.

[300]

In my respectful
    view, that is not a reasonable interpretation. The provision relied on by the
    Supervising Judge merely states that while the government has the documents, it
    must respond to lawful investigatory requests. There is nothing in the
    provision that requires the government to hold the documents for a different or
    longer period to be able to respond to inquiries from the police or child
    welfare authorities. The words all copies other than those held by the
    Government will be destroyed on the conclusion of the matter cannot reasonably
    be explained away on the basis of a retention period that the agreement does
    not contemplate.

[301]

I do not accept
    the submission that this provision should be read down and only applied to
    documents held by the Government during a retention period for so long as
    they are needed to resolve the claim. The agreement does not refer to any
    retention period. Nor can that reading be reasonably reconciled with the
    language of the provision itself which specifically refers to the conclusion
    of the matter. That language is sufficient to cover any period, retention or
    otherwise, during which the documents are needed in relation to the IAP claim,
    after which all documents other than those held by the government are to be
    destroyed.

[302]

The other
    specific reference to destruction of documents is found in Appendix B to the
    Guide. As the Chief Justice points out in his reasons, the parties disagree as
    to whether the Guide was formally part of the IRRSA. It is undisputed, however,
    that the terms of the Guide had been negotiated and agreed upon by the parties
    at around the time when the IRRSA was approved. In my view, the Guide provides
    clear evidence that the parties understood that the IAP documents were to be
    governed by the privacy, access and preservation of government records
    provisions of federal legislation.

[303]

Appendix B,
    entitled Protection of your personal information, explains to claimants that
    the application form will be treated with care and confidentiality, under the
    umbrella of federal privacy and access to information legislation:

The
Privacy Act
is the federal law that controls the way
    the government collects, uses, shares and keeps your personal information. The
Privacy
    Act
also allows people to access personal information about themselves.

The
Access to Information Act
is the federal law that
    allows access to government information. However, it protects certain kinds of
    information, including personal information.

We will deal with personal information about you and other
    people you identify in your claim privately and confidentially.
We will do
    so in accordance with the
Access to Information Act
, the
Privacy Act
,
    and any other applicable law
, or we will ask your permission to share
    information. [Emphasis added.]

[304]

The IRSSA deals
    at considerable length and in considerable detail with the issue of
    confidentiality and nowhere does it mention the possibility that the IAP
    documents will be destroyed other than with the approval of LAC. The crucial
    reference to destruction of documents is found in Appendix B under the heading
    Keeping your records:

The
Privacy Act
requires the government to keep your
    personal information for at least two years. Currently, the government keeps
    this information in the National Archives for 30 years, but this practice can
    change at any time.
Only the National Archivist can destroy government
    records.
[Emphasis added.]

This statement indicates that the parties did turn
    their minds both to the need to protect confidentiality and to the need to
    preserve records in accordance with the law. They recognized and accepted that
    under that legal framework, [o]nly the National Archivist can destroy
    government records.

[305]

The Supervising
    Judge quoted the Guide provision stating that [o]nly the National Archivist
    can destroy government records at para. 179 of his reasons, but did not
    explain why he gave it no effect. In my respectful view he erred in law by
    failing to give effect to this express provision or to provide some adequate
    explanation for why he chose not to.

[306]

The Supervising
    Judge stated, at para. 322 of his reasons, that the parties bargained for
    destruction of the documents but, in the same paragraph, stated that the Guide
    omitted the point that eventually the documents would be destroyed. Those
    findings are contradictory and cannot survive even a deferential standard of
    review. They fly in the face of the only terms in the IRRSA and the Guide that
    dealt with the destruction of documents.

(3)     Implied term

[307]

In his reasons,
    the Chief Justice refers to the Supervising Judge being entitled to order
    destruction of the IAP documents to fill gaps and unfulfilled promises. Later
    in his reasons he refers to the Supervising Judges authority to remedy the
    IRRSAs administrative deficiency on the disposition of IAP Documents. With
    respect, there is no gap or administrative deficiency, unless the Supervising
    Judge was entitled to create one because he did not like the result the terms
    of the agreement produced. The task of the court when interpreting an agreement
    is to give effect to the plain meaning of the express language chosen by the
    parties in drafting the agreement. The agreement clearly states that the
    documents can only be destroyed with the consent of the LAC. Nor is there any
    basis for finding that this carefully negotiated, detailed and comprehensive
    agreement left any promise unfulfilled.

[308]

It is not
    appropriate to imply a term that contradicts the express words of the
    agreement: see
Attorney General of Belize v. Belize Telecom Ltd.
, [2009]
    UKPC 10, [2009] 1 W.L.R. 1988, at para. 16;
Marks & Spencer Plc v. BNP
    Paribas Securities Services Trust Co (Jersey) Ltd.
, [2015] UKSC 72, [2015]
    3 W.L.R. 1843, at para. 21. The only references to destruction of documents in
    the Agreement point to the preservation of the documents held by Canada. This
    leaves no room to imply a term to the contrary.

[309]

Even if the
    agreement were silent on destruction, which it is not, silence is not a void
    permitting the court to imply a term requiring destruction in the face of the
    legislation. As Hoffman L.J. observed in
Belize Telecom
, at para. 17:

The question of implication arises when the instrument does not
    expressly provide for what is to happen when some event occurs.
The most
    usual inference in such a case is that nothing is to happen.
If the parties
    had intended something to happen, the instrument would have said so. Otherwise,
    the express provisions of the instrument are to continue to operate
    undisturbed. If the event has caused loss to one or other of the parties, the
    loss lies where it falls. [Emphasis added.]

[310]

The Supervising
    Judge identified but failed to apply the proper test for the implication of a contractual
    term. As Iacobucci J. observed in
M.J.B. Enterprises Ltd. v. Defence
    Construction (1951) Ltd.
, [1999] 1 S.C.R. 619, at para. 29,

What is important  is a focus on the intentions of the
actual
parties. A court, when dealing with terms implied in fact, must be careful not
    to slide into determining the intentions of
reasonable
parties. That is
    why the implication of the term must have a certain degree of obviousness to
    it, and why,
if there is evidence of a contrary intention, on the part of
    either party, an implied term may not be found on this basis. As G.H.L. Fridman
    states in
The Law of Contract in Canada
(3rd ed. 1994), at p. 476:

In determining the intention of the parties, attention must
    be paid to the express terms of the contract in order to see whether the
    suggested implication is necessary and fits in with what has clearly been
    agreed upon, and the precise nature of what, if anything, should be implied.

[Italics in original, underlining
    added.]

[311]

The express
    language to which I have referred is clear evidence of the parties intention
    that the governments copy of the application form would not be destroyed and
    that the IAP documents would be kept by Canada in accordance with federal
    privacy, access and archives legislation. The Supervising Judge failed to
    grapple with that language or explain how it was possible to imply a term to
    the contrary.

D.      BREACH OF CONFIDENCE

[312]

The respondents
    to the cross-appeal also rely on oral assurances of confidentiality given to
    IAP claimants, which the Supervising Judge also relied on to find that the
    transfer of the IAP documents to the LAC would amount to a breach of
    confidence. In my view, there are two reasons why any such assurances cannot be
    used to justify the exclusion of the documents from the statutory scheme or the
    destruction of the IAP documents.

[313]

First, it is
    well-settled that the government cannot escape the reach of federal privacy and
    access to information legislation by agreement:
Canadian Broadcasting Corp.
    v. Canada (National Capital Commission)
(1998), 147 F.T.R. 264, at para.
    31;
Canada (Information Commissioner) v. Canada (Minister of Citizenship and
    Immigration)
, 2002 FCA 270, [2003] 1 F.C. 219, at para. 11. The fact that a
    record contains confidential information that a government department has
    promised not to disclose does not remove the record from the control of that
    department: see
Rubin v. Canada (Minister of Foreign Affairs and
    International Trade)
,

2001 FCT 440, 204 F.T.R. 313, at paras. 17-18.

[314]

Second, IAP
    adjudicators and staff could not promise IAP claimants that the laws of Canada
    would not apply, nor could they bind Canada, and even if they could, as I have
    noted, Canada could not promise a level of confidentiality that would take the
    documents outside the reach of the legislative regime. The point that no one
    could promise the IAP claimants a level of confidentiality beyond that
    contemplated by the IRSSA and the law of the land was recognized in a statement
    made by Daniel Ish, the Chief Adjudicator, in April 2012 when some concern
    about the assurances of confidentiality being made by adjudicators was raised:

I think that the best that can be done is rely on [Schedule D
    to the Settlement Agreement] which essentially says that information will be
    kept confidential except as required within this process or otherwise by law
     In short, I ask adjudicators not to give iron-clad assurances about
    confidentiality but to advise claimants and other participants that the
    information is protected by law, will be handled securely and seen by those who
    have a legitimate need to see it.

[315]

As observed in
    Philip A. Osborne,
The Law of Torts
, 5th ed. (Toronto: Irwin Law, 2015),
    at p. 460: The action for breach of confidence is available when three
    elements are established namely, the information disclosed is confidential, it
    is communicated in confidence, and the information is misused by the person to
    whom it was communicated. The Supervising Judge found, at para. 360 of his
    reasons: [T]he parties and participants contracted out of absolute confidentiality
    and privacy. There were to be exceptions but those exceptions did not include
    the imperatives of the
Library and Archives of Canada Act
. As I have
    already explained, this interpretation of the IRSSA is an unreasonable one and
    ignores the plain language of the agreement and Guide that provided for
    Canadas retention of the documents in accordance with the legislative regime.

[316]

In my view, it
    follows that the Supervising Judge erred in law when he found that the AANDCs
    agreement with LAC for the transfer of records amounted to a breach of
    confidence by Canada. The information in IAP documents was communicated in
    confidence only to the extent that Canada could promise confidentiality in
    accordance with the applicable legislation. As I have observed, that
    legislative regime provides for a significant level of protection of personal
    information. In agreeing to transfer documents to LAC, AANDC was simply
    following the dictates of the
Library and Archives of Canada Act
which
    it could not escape, even if the records contained confidential information.
    Given the legislative scheme and the express terms of the IRSSA, I also cannot
    accept that the transfer of the IAP documents to LAC could constitute a
    misuse of the information.

E.      CONCLUSION

[317]

The only justification
    given by the Chief Justice for removing the IAP documents from the category of
    government records under the applicable federal legislation is an expansion
    of the implied undertaking rule, created by application of the inherent
    jurisdiction doctrine. In my respectful view, the settled jurisprudence on the
    meaning and reach of the implied undertaking rule makes clear that the rule has
    no application to the IAP documents. The inherent jurisdiction doctrine does
    not give this or any other court the right to provide exemptions from valid and
    otherwise applicable legislation because we do not like the result the
    legislation produces.

[318]

Moreover, in my
    respectful view, it would be contrary to the interests of justice to destroy
    the IAP documents. The IAP process was an important aspect of a significant
    moment in Canadian history. The decisions it produced provide a unique window
    on Canadas struggle to come to grips with the horrors of Residential Schools.
    Past wrongs may fester even after we think we have dealt with them. Sometimes
    errors are made and injustices need to be corrected. There is currently
    on-going litigation concerning the legitimacy of arguments made in the IAP
    process and accepted by IAP adjudicators: see
Fontaine v. Canada (Attorney
    General)
, 2015 ABQB 225. While the country moves forward in the hope that
    we have closed the door on the Residential Schools travesty, it is impossible
    to say that the interests of justice will never demand a re-examination of the
    IAP process.

[319]

The point was
    put eloquently in a statement made by Justice Murray Sinclair, TRC Chair, and
    quoted in the TRCs factum:

Rather than denying or diminishing the harm done, we must agree
    that this damage requires serious, immediate and ongoing repair. We must
    endeavour instead to become a society that champions human rights, truth and
    tolerance, not by avoiding a dark history but rather by confronting it.

[320]

If the IAP
    documents are destroyed, we obliterate an important part of our effort to deal
    with a very dark moment in our history. If the IAP documents are preserved
    according to the law, they will be kept from view for many years after the
    death of the IAP claimants but available thereafter should the need arise to
    revisit a terrible injustice.

F.       DISPOSITION

[321]

For the reasons
    given by the Chief Justice I would dismiss the appeals of the Catholic
    Entities, but for these reasons, I would allow the cross-appeals and set aside
    the Supervising Judges order to the extent that it requires the destruction of
    the IAP documents possessed and controlled by Canada through the SAO.

[322]

It follows that
    I would also set aside the Supervising Judges order as to costs and invite written
    submissions from the parties as to costs both here and below.

Robert J. Sharpe J.A.

Released: April 4, 2016

[1]
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, Les Surs de Notre Dame‑Auxiliatrice, Les Surs de St. Francois
    dAssise, Institut des Surs du Bon Conseil, Les Surs de Saint-Joseph de
    Saint-Hyacinthe, Les Surs de Jésus-Marie, Les Surs de lAssomption de la Sainte-Vierge,
    Les Surs de lAssomption de la Sainte-Vierge de lAlberta, Les Surs de la
    Charité de Saint-Hyacinthe, Les Oeuvres Oblates de lOntario, Les Résidences
    Oblates du Québec, Surs Grises de Montréal/Grey Nuns of Montreal, Sisters of
    Charity (Grey Nuns) of Alberta, Les Surs de la Charité des T.N.O., Hôtel‑Dieu
    de Nicolet, The Grey Nuns of Manitoba Inc./Les Surs Grises du Manitoba Inc.,
    Missionary Oblates ‑ Grandin Province, Les Oblats de Marie Immaculée du
    Manitoba, The Sisters of the Presentation, The Sisters of
St. Joseph of
    Sault St. Marie, Oblates of Mary Immaculate  St. Peters Province, The Sisters
    of Saint Ann, Sisters of Instruction of the Child Jesus, The Roman Catholic
    Bishop of Kamloops Corporation Sole, Order of The Oblates of Mary Immaculate in
    the Province of British Columbia, The Sisters of Charity of Providence of
    Western Canada, La Corporation Episcopale Catholique Romaine de Grouard, Roman
    Catholic Archiepiscopal Corporation of Winnipeg, Immaculate Heart Community of
    Los Angeles, Ca., The Catholic Episcopale Corporation of Mackenzie‑Fort
    Smith, and The Roman Catholic Episcopal Corporation of Prince Rupert.

[2]

Les Surs de Notre-Dame Auxiliatrice, Les Surs de
    Saint-François dAssise, LInstitut des Surs du Bon-Conseil, Les Surs de
    Saint-Joseph de Saint-Hyacinthe, les Surs de Jésus-Marie, Les Surs de
    lAssomption de la Sainte-Vierge, Les Surs de lAssomption de la Sainte-Vierge
    de lAlberta, Les Surs Missionnaires du Christ-Roi, and Les Surs de la
    Charité de Saint-Hyacinthe.

[3]

The IAP remains in progress but the application deadline has
    passed. All IAP hearings have not yet been completed.

[4]
Quebec, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia, Nunavut, Yukon
    and the Northwest Territories. Residents of the maritime provinces and outside
    Canada were deemed to be residents of Ontario.

[5]

The Guide went through a number of drafts and it
    does not appear that there was any final approved draft in place when the IRSSA
    was signed. The parties do not agree whether the Guide was a part of the IRSSA,
    but a draft version was available when the settlement received court approval.
    I will refer to the version of the Guide in the Joint Compendium filed by the
    parties, which does not appear to be materially different from the document
    referred to by the Supervising Judge at paragraph 179 of his reasons.

[6]
The
Privacy Act
states the schedule instead of Schedule I.

[7]
R.S.C., 1985 (3rd Supp.), c. 1, the predecessor to the
Library and Archives
    of Canada Act
.