COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA
    203

DATE: 20210401

DOCKET: C68080

Roberts, Jamal and Thorburn 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

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 Athabasca, 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 Westminster,

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. François dAssise, Institut
    des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyacinthe, 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
    Charité de St.-Hyacinthe, Les Oeuvres Oblates de lOntario, Les Résidences
    Oblates du Québec, La Corporation Épiscopale Catholique Romaine de la Baie
    James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic
    Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal,
    Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O.,
    Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.  Les Soeurs Grises du
    Manitoba Inc., La Corporation Épiscopale 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 Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal
    Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de
    St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface  The Missionary
    Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
    Winnipeg, La Corporation Épiscopale 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 Episcopal 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 (
Respondent
)

Joanna Birenbaum, for the appellant National Centre for
    Truth and Reconciliation

Catherine A. Coughlan and Brent Thompson, for
    the respondent Attorney General of Canada

Stuart Wuttke and Jeremy Kolodziej, for the respondent Assembly
    of First Nations

P. Jonathan Faulds, Q.C., for the respondent National
    Administration Committee

Heard: October 29, 2020 by video conference

On appeal from the order of
    Justice Paul M. Perell of the Superior Court of Justice, dated January 20,
    2020, with reasons reported at 2020 ONSC 366.

By the Court:

A.

Overview

[1]

This is an appeal by the
    National Centre for Truth and Reconciliation (NCTR) of the order regarding
    the disposition of proposed statistical reports and records arising out of the
    Indian Residential Schools Settlement Agreement (IRSSA) and the Independent
    Assessment Process (IAP).

[2]

This appeal is about
    competing privacy and archival interests involving the preservation and control
    of historical documents and data that relate to the intensely personal and
    confidential accounts of the survivors of the abuse that occurred at Canadas
    Indian Residential Schools. It concerns the myriad administrative records and
    other materials arising out of the settlement and adjudication of the Indian
    Residential School survivor claims pursuant to the historic IRSSA. The national
    tragedy of the Indian Residential Schools is well documented. The documentation
    of these claims was essential to the successful operation of the IAP that was
    established under the IRSSA. This documentation also served to advance the
    integral purposes of truth and reconciliation through the creation of the NCTR,
    a unique Indigenous historical archive.

[3]

The IAP records and
    documents have been the subject of several court proceedings. This appeal
    concerns the disposition of certain documents and the use of data (Records)
    related to the administration of the IAP by the Indian Residential Schools
    Adjudication Secretariat (the Secretariat) under the direction of the Chief
    Adjudicator. These Records pertain to the operation, management, and oversight
    of the IAP. Through the IAP, thousands of Indian Residential School survivor
    claims were adjudicated and resolved pursuant to the IRSSA that was
    court-approved in late 2006 and early 2007.

[4]

The Chief Adjudicator
    brought a Request for Directions (RFD) before the Supervising Judge of the
    Ontario Superior Court of Justice (Supervising Judge) with respect to two
    classes of Records: (a) proposed statistical reports; and (b) Non-Claim
    Records. The Supervising Judge is tasked with administering the IRSSA in Ontario.
    In this RFD, the Chief Adjudicator proposed to generate new statistical
    reports, titled Final Outcome Statistical Reports and referred to as Static
    Reports (the proposed Static Reports), about the IAP using confidential
    claims data. If these proposed Static Reports were approved, the Chief
    Adjudicator intended to include them in his IAP Final Report. The Chief
    Adjudicator also sought permission to transfer the proposed Static Reports and
    some of the Non-Claim Records for archiving to the appellant, the NCTR, which
    is an emanation of the IRSSA and not a party to the IRSSA.

[5]

At issue before the
    Supervising Judge was the risk of disclosure of IAP confidential information,
    as well as the reliability and archival importance of some of the statistical
    data and administrative documents sought to be produced and archived. The
    Supervising Judges predominant concern was to preserve the confidentiality of
    all information and documentation related to the claims and identities of the
    Indian Residential School survivors. With respect to the proposed Static
    Reports, if they could be produced in a form that ensured confidentiality,
    reliability, and archival validity, they would no doubt be of historical and
    archival importance.

[6]

The Supervising Judge dismissed
    the Chief Adjudicators RFD and declined to fully implement his proposal,
    including the preparation of the proposed Static Reports. Instead, the
    Supervising Judge directed the respondent, the Attorney General of Canada
    (Canada), to submit a new proposal for the archiving of copies of the
    Non-Claim Records with the NCTR, subject to certain inclusions and exclusions.

[7]

The NCTR submits that the
    Supervising Judge erred in dismissing the Chief Adjudicators RFD. Canada
    maintains that the Supervising Judge made no error and that the appeal should
    be dismissed.

[8]

For the reasons that follow,
    we agree that the Supervising Judge erred in his treatment of the proposed
    Static Reports, and we therefore remit this issue for a rehearing before the Supervising
    Judge. We dismiss the appeal as it pertains to the Non-Claim Records.

B.

Issues

[9]

The NCTR alone appeals from
    the Supervising Judges order and raises the following issues:

i.

Can and should the proposed Static Reports be
    generated and archived with the NCTR? In particular, did the Supervising Judge
    err in concluding that the proposed Static Reports should not be generated or archived,
    and that the model proposed Static Reports should remain sealed, as they:

(a)

directly
    or indirectly contravene
Canada (Attorney General) v. Fontaine
,
    2017 SCC 47, [2017] 2 S.C.R. 205 (
Fontaine (SCC)
),
by possibly allowing the identities of claimants and their confidential
    information to be uncovered;

(b)

could be
    manipulated or spun to draw unreliable and contentious conclusions; and

(c)

do
    not appear to advance the goals of truth and reconciliation?

ii.

Did the Supervising Judge err in excluding from
    archiving at the NCTR the following Non-Claim Records:

(a)

the adjudicator
    performance records;

(b)

the
    non-public IAP Oversight Committee records;

(c)

the
    complaint and investigation records in respect of IAP claims; and

(d)

any
    records that risk disclosing IAP personal information, confidential
    information, or information subject to solicitor-client or litigation
    privilege?

iii.

Did the Supervising Judge err by permitting
    Canada to archive the excluded Non-Claim Records while prohibiting Canada from
    ever transferring these records to the NCTR?

[10]

The NCTR also requests a
    stay of the Supervising Judges order with respect to the proposed Static
    Reports in order to forestall the destruction of the Single Access to Dispute
    Resolution Enterprise (SADRE) database, which is used to case-manage IAP
    claims.

[11]

The SADRE database houses
    the IAP data from which the proposed Static Reports would be generated. Only
    authorized staff in Aboriginal Affairs and Northern Development Canada (now
    Crown-Indigenous Relations and Northern Affairs Canada) and Secretariat
    offices, and those who have approved remote access software, can access the
    SADRE database. Through the design of the SADRE database, some information is
    only accessible by the Secretariat and some information is only accessible by
    Crown-Indigenous Relations and Northern Affairs Canada.

[12]

On December 11, 2020, this
    panel granted an interim stay of the order and of the destruction of the SADRE
    database until the release of this decision. As indicated below, this stay is
    continued until the Supervising Judge disposes of the issue of the proposed
    Static Reports that we remit for a rehearing.

[13]

The Assembly of First
    Nations (AFN) and the National Administration Committee (NAC) support the
    position taken by the NCTR regarding the proposed Static Reports. However, they
    take no position regarding the Non-Claim Records.

[14]

Canada submits the appeal
    should be dismissed in its entirety. Its overarching submission is that the
    NCTR has no contractual right or legal entitlement to demand production of
    these documents.

[15]

The Chief Adjudicator did
    not commence an appeal, nor did he appear on the hearing of the NCTRs appeal,
    despite being granted 15 minutes for oral argument by Pepall J.A.:
Fontaine
    v. Canada (Attorney General)
, 2020 ONCA 540, at para. 17. In a subsequent
    letter addressed to this panel, dated September 15, 2020, the Chief Adjudicator
    determined that his participation in this appeal was not necessary, as the
    Supervising Judge exercised his jurisdiction over the Non-Claim Records
    arising from the administration of the IRSSA by shaping the scope of a donation
    to the NCTR through balancing the personal privacy concerns with the public
    interest in preserving the records. Further, the Chief Adjudicator determined
    that it was best he did not participate in the appeal,
[g]iven past concerns about the participation of
    the Chief Adjudicator in appellate proceedings.
The proposed Static Reports were not mentioned in this
    letter. While the Chief Adjudicators absence does not preclude our
    determination of this appeal, on the rehearing, the Supervising Judge will need
    to determine the Chief Adjudicators current position regarding the proposed
    Static Reports.

C.

Admission of Fresh Evidence

[16]

Canada seeks to adduce fresh
    evidence on this appeal: the October 20, 2020 affidavit of Patricia Long, a
    paralegal with the Department of Justice Canada, that sets out the history of
    the appeal; and Canadas responding compendium containing Canadas materials
    filed in response to the NCTRs stay motion before Pepall J.A., including the
    August 13, 2020 affidavit of Ms. Long, affidavits filed in relation to the RFD
    that culminated in
Fontaine (SCC)
, and the IRSSA itself.

[17]

The NCTR primarily objects
    to the admission of Ms. Longs August 13, 2020 affidavit, which includes
    information that, as of that date, through the IAP notice plan that began in
    2018, 33 IAP claimants have authorized the Chief Adjudicator to deliver their IAP
    documents to the NCTR. The NCTR submits that this information is unhelpful and
    leads to evidentiary questions that the NCTR could have addressed if this had
    been raised before the Supervising Judge. In any event, the NCTR notes that IAP
    claimants have until September 2027 to make a decision about archiving their
    records.

[18]

We admit the materials
    proffered by Canada. In our view, the statistical information meets the
    criteria for admission: it was not available before the Supervising Judge; and
    it is relevant and necessary to deal fairly with the issues on appeal, as this
    information completes the contextual background for this appeal:
Sengmueller
    v. Sengmueller
(1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at pp. 22-23.

D.

Contextual Background

[19]

As an organizing framework
    for our analysis, we briefly set out the context in which the documents and
    data in issue were created and how the question of their disposition came
    before the Supervising Judge for consideration.

(1)

Overview of the IRSSA and the IAP

[20]

All the documents and data were
    created pursuant to the implementation and administration of the IRSSA. The
    IRSSA settled the class actions and civil claims of the approximate 79,000
    survivor claimants who suffered abuse while residents of the Indian Residential
    Schools in Canada and who were living as of May 30, 2005:
Baxter v. Canada
    (Attorney General)
(2006), 83 O.R. (3d) 481 (S.C.), at para. 4;
Fontaine
    v. Canada (Attorney General)
, 2020 ONCA 688, at para. 6.

[21]

Between the 1860s and 1990s,
    more than 150,000 Indigenous children were placed in the Indian Residential
    Schools funded by Canada and operated by various religious organizations. Here,
    the children suffered the appalling abuse that gave rise to the IRSSA. The
    IRSSA represents the culmination of negotiations to address the historical and
    ongoing damaging legacy of Canadas Indian Residential Schools system. Notably,
    the Preamble to the IRSSA provides that its goals are to achieve a fair,
    comprehensive and lasting resolution of the legacy of Indian Residential
    Schools through the promotion of healing, education, truth and reconciliation
    and commemoration.

[22]

Between December 2006 and
    January 2007, nine courts across Canada (the supervising courts) approved the
    IRSSA and issued substantially identical Approval Orders. In March 2007, the
    supervising courts also issued identical Implementation Orders. As set out by
    the Supervising Judge, at para. 13 of his reasons, the judgments and orders of
    the supervising courts provide that the supervising courts shall supervise the
    implementation of the IRSSA and that the
[supervising courts]
may issue such orders as are necessary to implement and
    enforce the provisions of the agreement and the judgment.

[23]

The IRSSA effectively
    combines all the outstanding litigation into one class action. Over 38,000
    claims have been processed and resolved, and over $3 billion has been disbursed
    to IAP claimants. The IRSSA provides for financial compensation to the
    survivors of the Indian Residential Schools, and it addresses the need for the
    archiving of documents to advance truth-telling and reconciliation and
    recognize the states duty to remember, all the while safeguarding the privacy
    interests of the individuals who participated in the process.

[24]

The IRSSA recognizes that
    compensation for the survivors of abuse through the IAP process is insufficient
    to fulfill its goals of truth and reconciliation. As the AFN indicated in its
    November 2004 report entitled Report on Canadas Dispute Resolution Plan to
    Compensate for Abuses in Indian Residential Schools, truth-telling, healing,
    and public education are also required. The AFNs recommendation for the
    creation of a truth commission to advance these purposes was incorporated into
    the IRSSA.

[25]

Article 7.01 and Schedule N
    of the IRSSA establish the Truth and Reconciliation Commission (TRC), which
    was tasked with creating a historical record of the Indian Residential School
    system and ensuring that its legacy is preserved and made accessible to the
    public for future study:
Fontaine (SCC)
, at para. 11. Schedule N also provides
    for the creation of a National Research Centre, later the NCTR, to archive and
    store the records collected by the TRC:
Fontaine (SCC)
, at para. 11. Schedule
    N also allows, but does not require, the transfer of IAP information to the TRC,
    and therefore to the NCTR, for research and archiving purposes.

[26]

In keeping with the purposes
    of truth and reconciliation, pursuant to Schedule D of the IRSSA, the IAP was
    created as a means for claimants to seek financial compensation for the serious
    physical and sexual abuse that they suffered at Indian Residential Schools.
In the fabric of this court
    process, Canada has both an administrative role in allocating the settlement
    funds and an adversarial role in challenging IAP claims:
Baxter
, at paras. 36-38.

[27]

Given the enormously
    sensitive and private nature of the information that is disclosed during the
    IAP, there was a high premium placed on confidentiality by the participants.
    But for the promise of absolute confidentiality, claimants, alleged
    perpetrators, and church representatives would not likely have participated:
Fontaine
    (SCC)
, at paras. 42-47.

[28]

The Secretariat manages the
    IAP under the direction of the Chief Adjudicator. The Chief Adjudicator, who
    has been in the role of supervising the IAP since 2013, is certainly well
    placed to make recommendations concerning records and reports pertaining to the
    IAP. As directed by Schedule D of the IRSSA, one of the Chief Adjudicators
    duties is to
[p]
repare annual reports to the Oversight Committee
    on the functioning of the adjudicative process under this IAP. This IAP
    Oversight Committee supervises the administrative aspects of the IAP. In
    addition, the Implementation Orders for the IRSSA indicate a further reporting
    obligation for the Chief Adjudicator, as he must report directly to the
    supervising courts of the IRSSA not less than quarterly on all aspects of the
    implementation and operation of the IAP.

[29]

The IRSSA does not expressly
    address the issue of the production of the proposed Static Reports nor the disposition
    of the Non-Claim Records. However, the establishment of the TRC, its goal to
    create as complete a historical record as possible, and the creation of the
    NCTR to fulfill the TRCs mandate, support the idea that the IRSSA allows for
    the production of historically important and reliable materials and documents
    where no risk of disclosure of confidential information exists.

(2)

The Chief Adjudicators RFD and
Fontaine (SCC)

[30]

In anticipation of the
    projected completion of IAP adjudication work by December 2020 and the
    projected administrative closeout of the Secretariat by March 31, 2021, the
    Chief Adjudicator has sought the direction of the Supervising Judge concerning
    the appropriate disposition of all the Records pertaining to the IAP.

[31]

The disposition of the IAP
    documents related to the claims advanced by Indian Residential School survivors
    (the Claim Records) was the subject of an earlier RFD that culminated in the
    Supreme Court of Canadas decision in
Fontaine (SCC)
. Here, the
    Supreme Court upheld the Supervising Judges decision that all Claim Records
    must be destroyed following a 15-year retention period to protect the privacy
    and confidentiality rights of the claimants. During this period, individual IAP
    claimants may elect to have their own Claim Records preserved and archived
    through a notice program administered by the Chief Adjudicator. According to
    the fresh evidence filed by Canada, as of August 13, 2020, only 33 claimants
    have so far elected to transfer their own Claim Records to the NCTR.

[32]

In
Fontaine (SCC)
,
    the Supreme Court resolved [t]he tension between th
[
e] mandate of
    commemoration and memorialization, and the privacy which IAP claimants were
    promised: at para. 11. The Supreme Court confirmed the primacy of the IAP
    claimants entitlement to privacy and the need to respect their choice to share
    (or not share) their sensitive and personal stories. As the Supreme Court
    observed at para. 59, It is not for this Court to conscript the stories of
    survivors, where confidentiality and solely voluntary disclosure had been
    agreed to.

[33]

The Chief Adjudicator sought
    directions regarding his proposal to produce and archive the proposed Static
    Reports. With respect to the Non-Claim Records, the Chief Adjudicator made a
    proposal and sought directions regarding their disposition and archiving at the
    NCTR.

[34]

With respect to the proposed
    Static Reports, importantly, the Secretariat had already prepared statistical
    reports using the SADRE database (existing statistical reports), which have
    been disseminated to the IAP Oversight Committee and the supervising courts
    through the Chief Adjudicators annual and quarterly reports. Some of these
    existing statistical reports have been published on the Secretariats website
    and therefore made available to the public. According to the October 25, 2019
    affidavit of Nicole Hansen, the Acting Manager of the Business Process
    Management and Reporting Unit of the Secretariat and Supervisor of Statistical
    Operations, at para. 24, the rationale behind the production of the proposed
    Static Reports is that statistical data from the IAP can contribute to
    understanding the scale and scope of abuse at residential schools by future
    historians, as well as contributing to understanding the IAP claims process
    itself.

[35]

According to Ms. Hansen, the
    proposed Static Reports were intended to be a final set of statistical reports
    to provide an overview of the IAP claimant population and the claims process. The
    Chief Adjudicator proposed that they be appended to his IAP Final Report and also
    archived at the NCTR. Model proposed Static Reports were produced under seal
    for the Supervising Judges review, attached as Exhibit K to Ms. Hansens
    affidavit.

[36]

The initial generation of
    the proposed Static Reports was undertaken in consultation with the lAP
Oversight Committee. As indicated at paras. 25-26
    of Ms. Hansens affidavit, Sample Final Static Reports [were] provided to
    the lAP Oversight Committee and modifications [were] made based on feedback
    received from committee members. In fact, the variables to be cross-tabulated
    and presented in the proposed Static Reports were selected based on
    consideration of what might be of interest to residential school survivors,
    historical researchers, and the public.

[37]

A very high-level summary of
    the nature of these proposed Static Reports is contained at para. 39(g) of the
    Supervising Judges reasons.
In describing
    the major details of the Chief Adjudicators proposal, the Supervising Judge
    explained that the proposed Static Reports
would cross-tabulate specific variables in the SADRE
    database and be accompanied by a glossary of terms. For example, the proposed Static
    Reports would aggregate information about lAP claimant profiles based on
    variables such as age, sex, and acts of abuse by province.

[38]

At para. 30 of her
    affidavit, Ms. Hansen provided a general list of the categories of information to
    be contained in
the
    proposed Static Reports:

(i) General
    statistical information about the lAP;

(ii) Overview
    of IAP claims;

(iii) lAP
    process timelines;

(iv) Claim
    compensation statistics;

(v) lAP
    claimant profile;

(vi) Claim
    compensation statistics by religious affiliation of [Indian Residential
    Schools]; and

(vii) Claim
    statistics for individual [Indian Residential Schools].

[39]

Ms. Hansen deposed that the
    Secretariat uses various techniques to protect individual privacy and
    confidentiality, including data generalization and data suppression, when
    producing statistical reports. Using these techniques, the model proposed Static
    Reports attached as Exhibit K to Ms. Hansens affidavit were generated at the
    national, provincial, and territorial level. For the proposed Static Reports,
    as stated at para. 28 of Ms. Hansens affidavit, the age of claimants will be
    aggregated in 10-year bands, with outliers of very young or very old claimants
    further aggregated. Lastly, Ms. Hansen indicated at para. 27 that where fewer
    than 20 adjudicator decisions were made in respect of an individual Indian
    Residential School, the data will be aggregated and summarized in an other schools
    category.

[40]

Despite this study of the
    techniques to be used, the parties proffered no expert or other evidence
    concerning the level of data generalization or data suppression that would be
    necessary to ensure confidentiality and the reliability and archival soundness
    of the proposed Static Reports, nor was there any evidence before the Supervising
    Judge that any particular table contained in the model proposed Static Reports
    attached as Exhibit K to Ms. Hansens affidavit identified or risked
    identifying lAP claimants or anyone else.

(3)

The Supervising Judges Decision

[41]

The Supervising Judge
    determined that the proposed Static Reports should not be generated or included
    in the Chief Adjudicators IAP Final Report or archived at the NCTR. He
    concluded that the proposed Static Reports might reveal, through deductive
    reasoning, the identity of IAP claimants, which would contravene the prior
    order in
Fontaine (SCC)
. The Supervising Judge also held that there
    was a danger the data could be manipulated or spun to draw unreliable and
    contentious conclusions, and in his view, some of the data would not
    necessarily advance truth and reconciliation.

[42]

The
    Supervising Judge held that with respect to the Non-Claim
Records, the normal regime for the disposition
    of government documents should not be disturbed. Therefore, Canada, not the Chief
    Adjudicator, should submit a new RFD for the disposition and archiving of copies
    of the Non-Claim Records with the NCTR, subject to the Supervising Judges directions
    concerning the inclusion and exclusion of certain documents in the Non-Claim
    Records collection. In particular, he excluded from the Non-Claim Records
    collection the adjudicator performance records, the non-public IAP Oversight
    Committee records, and the complaint and investigation records, on the basis
    that they reveal confidential, sensitive, and privileged information. He also
    generally excluded the archival of records where there was any risk that they
    could reveal IAP personal information, confidential information, or information
    subject to solicitor-client or litigation privilege.

E.

ANALYSIS

(1)

Standard of Review

[43]

At its core, this
    appeal involves the Supervising Judges treatment of the proposed Static
    Reports and the Non-Claim Records based on his review of the evidentiary record
    before him. Notably, in dismissing the Chief Adjudicators RFD, the Supervising
    Judge reviewed the model proposed Static Reports and other key pieces of
    evidence pertaining to the Non-Claim Records to arrive at his conclusions.
    Therefore, his conclusions involved the interpretation of the evidence as a
    whole:
Housen v. Nikolaisen
, 2002 SCC 33,
[2002] 2 S.C.R. 235, at para. 36;
Amertek Inc. v. Canadian Commercial Corp.
(2005), 76 O.R. (3d) 241 (C.A.), at para. 68,
    leave to appeal refused,
[2005]
    S.C.C.A. No. 439.

[44]

Such an interpretation
    of evidence involves factual or inferential determinations, which are entitled
    to deference and should not be overturned by an appellate court, except where
    there is a palpable and overriding error or one of its functional
    equivalents, which includes a decision that is not reasonably supported by
    the evidence: see
H.L. v. Canada (Attorney General)
, 2005 SCC 25,
    [2005] 1 S.C.R. 401, at para. 110;
MacDougall v. MacDougall
(2005),
    205 O.A.C. 216 (C.A.), at para. 31.

[45]

Moreover, by virtue of
    his appointment
, the Supervising
    Judge has wide supervisory jurisdiction and discretion under the IRSSA, class
    action legislation, and his inherent jurisdiction as a superior court justice,
    to implement and administer the IRSSA and make directions regarding the disposition
    of the IAP documents:
Fontaine (SCC)
, at paras. 31-33. Having served
    as Eastern Administrative Judge since 2013, the Supervising Judge is certainly
    well-versed in the history of the IRSSA and the importance of the IAP
    documents.

[46]

However, as we will
    explain below, the Supervising Judges conclusion, at para. 225 of his reasons,
    that producing and archiving the proposed Static Reports puts far too much at
    risk, for too little gain was
not reasonably supported
    by the evidence:
H.L.
, at para. 110
. Appellate intervention is
    therefore warranted to remit this issue for a rehearing before the Supervising
    Judge.

[47]

We reach a different
    conclusion with respect to the Supervising Judges dismissal of the Chief
    Adjudicators proposal for the Non-Claim Records. For the reasons set out
    below, we see no error with his determination of this issue.

(2)

The
Proposed Static
Reports

(a)

Positions on
Appeal

[48]

The NCTR, the AFN, and the
    NAC submit that the Supervising Judge erred in failing to order the generation
    of the proposed Static Reports. They say there is no evidence to support the
    Supervising Judges conclusions that the proposed Static Reports could reveal
    confidential information, were subject to manipulation and could be spun to
    drawn unreliable and contentious conclusions and would not advance truth and
    reconciliation.

[49]

Canada opposes the
    preparation of the proposed Static Reports on the grounds that the IRSSA makes
    no reference to their generation and the NCTR does not possess a contractual or
    legal right to require their production. Canada submits there is no basis to
    intervene with the Supervising Judges determination that the proposed Static Reports
    would contravene the order in
Fontaine (SCC)
, nor his conclusions
    concerning the issues of reliability and utility.

(b)

Discussion

[50]

The issue is whether the Supervising
    Judge should have ordered that the proposed Static Reports be produced by the
    Chief Adjudicator and archived at the NCTR. In his reasons, the Supervising
    Judge outlined three key concerns: whether the confidentiality of IAP claimants
    could be maintained; whether the information could be manipulated or spun to
    draw unreliable and contentious conclusions; and whether the production of the proposed
    Static Reports would advance the goals of truth and reconciliation.

[51]

The parties adduced no
    evidence that the Supervising Judge was prepared to accept in relation to these
    questions, nor did the Supervising Judge request further evidence to address
    his concerns.

[52]

Given the Supervising
    judges concerns, he could and should have requested further information from
    the parties to enable him to properly assess his concerns. He erred by
    dismissing the request for the production of the proposed Static Reports and
    the archiving of the proposed Static Reports at the NCTR in the absence of an
    evidentiary foundation that permitted him to make any determination on these
    issues.

[53]

In his reasons, the
    Supervising Judge acknowledged the historical significance of both the Claim
    Records and the Non-Claim Records. He also recognized the historical
    significance of the existing statistical reports that were founded on data from
    the SADRE database, as evidenced by the fact that he ordered that they be
    included in the Non-Claim Records collection to be archived at the NCTR.

[54]

While the confidentiality,
    reliability, and archival validity of the form and contents of the proposed
    Static Reports were disputed, the historical and archival importance of the
    information to be contained in the proposed Static Reports was not in issue.
    The unchallenged June 9, 2018 expert affidavit of Dr. Trudy Huskamp Peterson, a
    Certified Archivist of the Academy of Certified Archivists, confirmed, at para.
    10, that a very broad approach to preserving records of transitional justice
    and human rights mechanisms or institutions is prudent, appropriate, and in
    keeping with internationally accepted archiving principles and standards.

[55]

Given the historical
    significance of the information to be gleaned from the SADRE database that is
    slated for destruction, it was incumbent on the Supervising Judge to adjudicate
    this issue on an adequate record. He erred by rendering a decision that was
not reasonably supported by the evidence:
H.L.
, at para. 110
.

[56]

As a result, we remit the
    issue of the proposed Static Reports to the Supervising Judge for determination
    in accordance with these reasons and the directions that we shall outline at
    the conclusion of our analysis.

[57]

As we are remitting the
    issue of the proposed Static Reports to the Supervising Judge, it is important
    that we delineate in our analysis the facets of the Supervising Judges
    analytical approach that are not in dispute or in error, and those that require
    correction and further direction for the purpose of the rehearing.

(i)

The Unchallenged Aspects of the Supervising Judges Approach

[58]

We start our analysis with
    the issues that are not in dispute on appeal.

[59]

First, the proposed Static
    Reports are meant to contain aggregated statistical data about IAP claimants
    that would serve to provide a better understanding of the claims process and
    the scale and scope of abuse at the Indian Residential Schools. As such, as long
    as the confidentiality of the IAP data is preserved, the IRSSA does not explicitly
    preclude the generation of the proposed Static Reports.

[60]

Second, there is nothing in
    the IRSSA to circumscribe the Chief Adjudicators exercise of his discretion in
    fulfilling his responsibility to report on the process and explain the findings
    of the IAP, except for the overarching concerns of maintaining the privacy of
    the individuals involved in the IAP and of advancing the goals of truth and
    reconciliation.

[61]

Third, concerns about the
    disclosure of the proposed Static Reports must be remitted to the Supervising
    Judge. The Supervising Judge has the power to direct the handling of the IAP
    documents:
Fontaine (SCC)
, at para. 31. This includes determining
    whether the proposed Static Reports should be generated and archived. No party
    or non-party may unilaterally direct the production of any IAP document,
    including the proposed Static Reports. Approval of any such production must be
    sought from the Supervising Judge.

[62]

Fourth, the Supervising Judge
    is required to protect the confidentiality of the IAP claimants private
    information. There is no dispute that if there were a risk that the proposed
    Static Reports revealed confidential claimant data, they should not be produced,
    as this would violate the order in
Fontaine (SCC)
. Given that the
    information in the proposed Static Reports would be based on the confidential
    information contained in the SADRE database, protection of the IAP claimants
    rights to confidentiality must be maintained. Following
Fontaine (SCC)
,
    the safeguarding of the IAP claimants privacy rights properly served as the
    main lens through which the Supervising Judge assessed the Chief Adjudicators
    proposal regarding the proposed Static Reports.

[63]

Fifth, no issue is taken
    with the principles the Supervising Judge used to consider the reliability and
    archival utility of the proposed Static Reports. His reasons demonstrate that
    he was attuned to the four foundational principles for archives espoused by Dr.
    Peterson: authenticity; reliability; integrity; and usability.

[64]

Sixth, there was no dispute
    that, like the existing statistical reports, the production of the proposed
    Static Reports could be of historical and archival significance, provided they are
    generated in a form that protects the claimants rights to the
    confidentiality of their IAP information, and that the data are produced in a
    reliable manner that is consistent with the principles of archival validity and
    utility.

[65]

Indeed, the Supervising
    Judges approval of the existing statistical reports is unchallenged on appeal.
    As the Supervising Judge recognized by his inclusion of the existing
    statistical reports in the Non-Claim Records collection to be archived at the
    NCTR, the production of statistical reports may be of historical and archival
    significance, so long as these reports do not reveal IAP confidential data. In
    fact, the Supervising Judge, at para. 214 of his reasons, determined that the
    existing statistical reports do not violate the order in
Fontaine (SCC)
,
    as they are aggregate or collective information that does not identify
    individual claimants.

[66]

At para. 215 of his reasons,
    the Supervising Judge rejected Canadas argument that the existing statistical
    reports revealed IAP confidential data because they are more about the nature
    of the IAP claims in general and the aspects of the IAP that were engaged than
    they are about the characteristics or identities of the Claimants in
    particular. He was further satisfied, at para. 222 of his reasons, that the
    existing statistical reports ha
[
d] variables that in the aggregate do not reveal
    information that would be offensive to individuals or to the collective
    because they report on the Secretariats administration and processing of
    claims, rather than on what the claims process reveals about the history of
    particular residential schools.

(ii)

The Disputed Elements of the Supervising Judges
    Approach

[67]

The NCTR argues that the
    Supervising Judge erred in his approach because his concerns about the proposed
    Static Reports are not supported by evidence. Canada disagrees with the NCTRs
    position.

[68]

The core of the Supervising
    Judges reasons regarding the proposed Static Reports is contained at paras.
    220-25, excerpted here:

[H]
aving examined the model Static
    Reports, I observe that depending on what specific variables are selected,
it
    might be possible by deductive reasoning to disclose the identities of IAP
    Claimants
and this would arguably contravene the Orders made in [
Fontaine
    (SCC)
].

[D]epending on school size and temporal information, and
    variables based on age, sex, and acts of abuse by province,
it might be
    possible to deduce confidential personal information from some of the proposed
    Static Reports
. I am especially concerned that this may be possible in the
    case of some small and remote communities, leading to very unfortunate
    consequences.

Information about how many claims were made and how many were
    resolved is statistical information that cannot be manipulated or spun to draw
    unreliable and contentious conclusions. However, the same cannot be said about
    some of the proposed Static Reports, where, for instance,
unreliable and
    contentious conclusions might be drawn about acts of student-on-student abuse
    at particular schools
. I have reviewed some models of Static Reports and
the
    reliability and soundness of the models is doubtful without more information
    from historians, archivists, sociologists, and perhaps other social scientists
    with some expertise in statistical analysis about the proper and appropriate
    use of this statistical evidence[
.]

Lies as much as truths can be told by the manipulation of data.
    There is some considerable truth in the progressive maxim lies, damned lies,
    and statistics, and
care needs to be taken in making a statistical analysis
    that support[s] observations and conclusions that are debatable and
    contentious. A deeper understanding of the SADRE database might belie any
    conclusions to be drawn from Static Reports
.

[I] do not see how truth and reconciliation will be advanced
    by reports identifying which school was the worst of the worst or ranking
    schools in the order of which school had more student-on-student sexual
    assaults than staff sexual assaults, etc.
[Emphasis added.]

[69]

As the emphasized excerpts
    demonstrate, the Supervising Judge expressed considerable concern about the
    inadequacy of the evidentiary record and raised questions that he concluded
    could not be answered. We agree with the NCTRs submission that the Supervising
    Judge erred by dismissing the RFD without any adequate evidentiary foundation.

(iii)

The
Inadequacy
of the
    Evidentiary Record

[70]

With respect to the
    evidentiary record before him, it was open to the Supervising Judge to raise
    the issues he did concerning the absence of expert and other evidence that he
    believed precluded him from assessing the reliability and soundness of the
    proposed Static Reports.

[71]

The Chief Adjudicator was
    alive to these issues. As we earlier noted, the lay affidavits before the
    Supervising Judge provided a summary of the possible methodologies that could
    be employed to anonymize data, such as data generalization and data
    suppression, and there was general, uncontroversial evidence about archival
    science and internationally accepted archiving principles.

[72]

However, there was no expert
    or other evidence concerning the level of data generalization or data suppression
    that would be necessary to ensure confidentiality and the reliability and
    soundness of the proposed Static Reports. Notably, Dr. Peterson was not asked
    to provide an opinion on the generation of statistical information, which
    includes the proposed Static Reports.

[73]

It is uncontroversial that
    the risk of disclosure of confidential information increases commensurate with
    the greater level of detail provided. As Professor David H. Flaherty noted at
    para. 74 of his May 2, 2014 affidavit, filed as expert evidence in support of
    the earlier RFD about the Claim Records, while in theory anonymization by
    redaction is possible,
[i]
n practice, there is now a rich literature on
    how enormously difficult it is to try to anonymize personal information  and
    that the risks of re-identification are very high.

[74]

Further, there was no
    conclusive evidence as to what form the proposed Static Reports would definitively
    and ultimately take. The Supervising Judge was provided with models of proposed
    Static Reports, attached as sealed Exhibit K to Ms. Hansens affidavit.
    However, it was by no means certain that these models would be the final form
    of all the proposed Static Reports to be generated. As Ms. Hansen noted at
    para. 15 of her affidavit, Statistical Reports can take many forms, depending
    on the available data, the purpose for which the reports will be used, and the
    audience. Notably, prior proposed Static Reports were modified based on
    feedback from the IAP Oversight Committee members, which include an independent
    chair and eight other members: two former Indian Residential School students;
    two class counsel representatives; two church representatives; and two
    representatives for Canada. Also, when explaining the form of the model
    proposed Static Reports, Ms. Hansen used the words
[a]t present, at para. 30 of her affidavit. Such language
    leads to the assumption that the model proposed Static Reports are not in final
    form, as the form itself may be modified in the future.

(iv)

The Supervising Judges Errors

[75]

Having identified his
    concerns that there was a lack of expert and other evidence, the Supervising
    Judge erred by concluding, at paras. 220 and 225 of his reasons, that the proposed
    Static Reports would arguably contravene the Orders made in
[
Fontaine
    (SCC)
]
 and that generating and archiving the Static Reports puts
    far too much at risk, for too little gain, as these conclusions were
not reasonably supported by the evidence:
H.L.
, at para. 110
.
    Other than the Supervising Judges personal examination of the model proposed
    Static Reports, the Supervising Judge did not refer to any evidence to justify these
    conclusions, and the defects in the evidentiary record that he identified did
    not permit him to reach those determinations.

[76]

First, there was no evidence
    before the Supervising Judge in support of his belief, advanced at para. 221 of
    his reasons, that it might be possible to deduce confidential personal
    information from some of the proposed Static Reports. Nor has Canada submitted
    any concrete privacy or confidentiality concerns about specific identifiable
    information.

[77]

While Professor Flaherty
    outlined in his affidavit the difficulty in anonymizing data, he did not state
    that it cannot be done. Indeed, the existing statistical reports demonstrate
    that it can be done. As already noted, the existing statistical reports contain
    aggregated data taken from the SADRE database. The Supervising Judge expressed
    no concerns about the confidentiality, reliability, or utility of those
    reports. Moreover, he ordered that they be included in the Non-Claim Records
    collection to be archived at the NCTR. During oral submissions, Canada conceded
    that the existing statistical reports are examples of reports where data were
    harvested from the SADRE database and presented at a very high-level, in a
    way that does not reveal confidential information.

[78]

According to the October 11,
    2019 affidavit of Roger Tetreault, the Executive Director of the Secretariat,
    at para. 51, the existing statistical reports, which are derived from the same
    database to be used to produce the proposed Static Reports, are produced in
    accordance with statistical principles which involve the aggregation of data in
    ways that allow for meaningful analysis without identifying individuals. The
    goal is to ensure that the proposed Static Reports do not contain
personal information that could identify a
    claimant, alleged perpetrator, or any other affected individual.

[79]

In her affidavit, Ms. Hansen
explained the various methodologies that were used
    throughout the IAP process to ensure the confidentiality of claimants and other
    participants in the IAP when producing statistical reports: s
tatistical
    aggregation of data; data generalization; and data suppression.

[80]

The same statistical
    principles and methodologies employed to ensure the confidentiality,
    reliability, and utility of the existing statistical reports would presumably be
    used in the creation of the proposed Static Reports. The proposed Static
    Reports are statistical reports and, as Mr. Tetreault and Ms. Hansen indicate
    in their respective affidavits, statistical reports are produced in accordance
    with these statistical principles and methodologies.

[81]

Second, there was no
    evidence in support of the Supervising Judges conclusion that the data in the
    proposed Static Reports could or would be manipulated. Specifically, the
    Supervising Judges reasons reference no evidence in relation to his statements
    at para. 223 that the reliability and soundness of some models that he
    reviewed was doubtful and that unreliable and contentious conclusions might be
    drawn regarding acts of student-on-student abuse at particular schools.

[82]

Third, there was no evidence
    that the production of the proposed Static Reports would impair the goals of
    truth and reconciliation. On the contrary, as the Supervising Judge
    acknowledged by the inclusion of the existing statistical reports in the
    Non-Claim Records collection, the data within statistical reports are of
    historical importance. Notably, these data no doubt hold important information
    on how widespread the physical and sexual abuse was in the Indian Residential Schools.
    If confidentiality and reliability are ensured, the proposed Static Reports will
    be available to advance truth and reconciliation by presenting and preserving data
    about the history, impact, and legacy of Canadas Indian Residential Schools.
    In this way, the proposed Static Reports would further the objectives of the
    IRSSA.

(v)

Conclusion

[83]

The Supervising Judges
    concerns about the need to ensure the confidentiality, reliability, and
    archival utility of the proposed Static Reports, and his concern regarding the
    lack of sufficient evidence, are valid concerns. However, there was no evidence
    before the Supervising Judge to substantiate those concerns.

[84]

Having identified his
    concerns pertaining to confidentiality, reliability, and archival utility, the
    Supervising Judge should have required further evidence be adduced.

[85]

In our view, one of the
    principal obstacles faced by the parties and the Supervising Judge is that no
    proposed Static Reports were generated. Only model proposed Static Reports were
    provided to the Supervising Judge. Without generating the proposed Static
    Reports in their final form, it is difficult if not impossible to determine
    whether the proposed Static Reports should be produced and archived. Generation
    of the proposed Static Reports will allow the parties to respond to the
    Supervising Judges concerns, articulate any specific objections, and
    substantiate those objections with reference to specific areas of issue in the
    proposed Static Reports.

[86]

Accordingly, we order that
    any proposed Static Reports be produced in final form by the Chief Adjudicator,
    placed under seal, and submitted to the Supervising Judge prior to the
    rehearing. If the Chief Adjudicator is unable to produce the proposed Static
    Reports prior to the closure of the Secretariat, the parties may seek direction
    from this court.

[87]

For clarity, the proposed
    Static Reports could include those already produced in Exhibit K to Ms.
    Hansens affidavit if those reports are, in fact, in final form. The
    Supervising Judge will then determine how the proposed Static Reports will be
    produced under seal, prior to the rehearing, to the parties and their experts
    for the purposes of the rehearing. Production of these proposed Static Reports
    under seal will allow the parties the opportunity to review the proposed Static
    Reports in their final form, and adduce further evidence to properly address, or
    make submissions concerning, the risk of disclosure of confidential IAP
    information, their reliability, and their archival validity.

[88]

Until the Supervising Judge
    has determined the issue of the proposed Static Reports, we order a stay of the
    order and of the destruction of the SADRE database from which the proposed Static
    Reports are intended to be produced.

(3)

The Non-
Claim
Records

[89]

The NCTR submits that the
    Supervising Judge ignored Canadas duty under the IRSSA to remember and to
    preserve records of enduring historical value and prioritized the privacy of
    state actors over the rights of Indigenous peoples, and the public interest in
    general, to the preservation of these records.

[90]

In our view, these
    submissions have no merit and can be dealt with summarily.

[91]

While the NCTR is an
    appropriate archive, it has no legal or contractual right to demand the
    transfer of any documents. As Canada argues, the IRSSA gives the NCTR no such
    authority. In fact, the IRSSA is otherwise silent regarding the disposition of
    the Non-Claim Records.

[92]

Further, the Supervising
    Judge expressly referenced and acknowledged, at paras. 127-31 of his reasons,
    the historical and archival importance of the Non-Claim Records, including
    those pertaining to the administration and workings of the Chief Adjudicator,
    the IAP Oversight Committee, and the Secretariat. As he stated at para. 193 of
    his reasons:

The Claim Records and the Non-Claim Records
    are both important parts of creating a comprehensive historical record and of
    fulfilling Canadas duty to compile a comprehensive and accessible record based
    on human rights principles that, in turn, respond to a right to justice, a
    personal and collective right to know, and the states duty to remember.

[93]

The Supervising Judge was
    required to balance non-claimant individual rights to privacy, confidentiality,
    and legal privilege with the goals enshrined in the IRSSA. In doing so, he
    determined that the following categories of Non-Claim Records contained
    confidential, sensitive, and privileged information. This determination was
    rooted firmly in the unchallenged evidence of Mr. Tetreault and the archival
    assessment of Edward Tompkins, appended to Mr. Tetreaults affidavit, which the
    Supervising Judge accepted.

(a)

The Adjudicator Performance Records

[94]

The adjudicator performance
    records were excluded from the Chief Adjudicators proposal. The Supervising
    Judge agreed with the Chief Adjudicator that disclosure of the adjudicator
    performance records would undermine deliberative secrecy and the finality of
    the IAP by providing a basis for collateral attacks on adjudicators decisions
    and re-litigation of matters settled in IAP proceedings. He also agreed that
    the idea of disclosing the records of adjudicators personal employment
    information was particularly inappropriate given the confidential nature of the
    IAP whereby decisions are not available for review.

(b)

The Non-Public IAP Oversight Committee Records

[95]

The non-public IAP Oversight
    Committee Records relate to the committees
in camera
sessions that arose
    in confidence. These also include records not normally made public: agendas;
    document packages; emails that may include sensitive personal information about
    adjudicators performance; complaints against claimant counsel and others; and
    information subject to solicitor-client privilege, litigation privilege, or
    common interest privilege. As a result, the Supervising Judge concluded that
    only publicly available records of the IAP Oversight Committee should be
    included in the Non-Claim Records collection.

(c)

The
Complaint
and
    Investigation Records

[96]

Complaint records include
    information about complaints and investigations into persons acting for claimants
    in connection with the IAP. They contain sensitive personal information and
    allegations against individuals. Some of the information has not been verified,
    corroborated, or tested. In some cases, the allegations were unfounded. A joint
    direction was made by judges in both Ontario and British Columbia that none of
    these documents should be published without prior written approval from the Court
    Monitor. The Supervising Judge therefore determined that the complaint and
    investigation records that had not been disclosed to the public should not be
    included in the Non-Claim Records collection.

[97]

We see no basis to intervene
    with the Supervising Judges decision to exclude these three categories of
    records from the Non-Claim Records collection.

(d)

The General Prohibition

[98]

Finally, we see no error in
    the Supervising Judges general prohibition against the inclusion of records in
    the Non-Claim Records collection where there is any risk that these records
    could reveal confidential and privileged information. In any event, it is open
    to the parties and non-parties to clarify the meaning of this provision when
    they re-attend to deal with the proposed Static Reports and Canadas RFD.

[99]

We therefore dismiss this
    ground of appeal.

(e)

Archiving of the Non-Claim Records

[100]

Lastly, the NCTR submits that the Supervising
    Judge erred in holding that Canada can archive these original confidential
    records, while prohibiting Canada from transferring these records to the NCTR.

[101]

We disagree that the Supervising Judge erred.

[102]

The Supervising Judges clear prohibition is
    against the public disclosure of confidential IAP information, as confirmed by
Fontaine
    (SCC)
. This is not controversial but a well-settled prohibition that
    applies equally to Canada and that the Supervising Judge was not permitted to
    revisit. As the Supervising Judge indicated at para. 203 of his reasons, the
    NCTR is free to build as comprehensive an archive as it may outside of the
    strictures of the IRSSA, which strictures it must observe just as much as Canada
    must observe those strictures.

[103]

However, the Supervising Judge did not prohibit
    Canada from transferring any other Non-Claim Records to the NCTR. As he stated
    at paras. 204 and 211 of his reasons, Canada is not or should not be against
    archiving copies of Non-Claim Documents with the NCTR, and there is,
    practically speaking, no meaningful dispute between the parties about the
    appropriateness of the NCTR as an archive for copies of the Non-Claim Records.
    As such, copies of appropriate Non-Claim Records, not originals, can be
    delivered to the NCTR, following the approach used by Goudge J.A. in
Fontaine
    v. Canada (Attorney General)
, 2013 ONSC 684, 114 O.R. (3d) 263, as
    emphasized by the Supervising Judge at para. 202 of his reasons.

[104]

It is also important to note that, as set out at
    paras. 194-204 of his reasons, the Supervising Judge envisaged and recommended
    a consultative process with respect to the Non-Claim Records. The NCTR will
    also have the opportunity to participate in the hearing of Canadas RFD and
    proposal regarding the Non-Claim Records to voice its concerns.

[105]

We therefore dismiss this ground of appeal.

F.

Disposition

[106]

For these reasons, we allow the appeal in part,
    set aside paras. 3(f) and 7 of the Supervising Judges January 20, 2020 order,
    and remit the issue of the proposed Static Reports to the Supervising Judge for
    a rehearing in accordance with these reasons.

[107]

We order the production of any further proposed
    Static Reports to be in final form and placed under seal to the Supervising
    Judge prior to the rehearing, in accordance with his directions.

[108]

We grant the NCTRs request for a stay of the
    order to prevent the destruction of the SADRE database from which the proposed
    Static Reports are to be produced, until such time as the Supervising Judge
    disposes of this issue.

[109]

We otherwise dismiss the appeal as it pertains
    to the Non-Claim Records.

[110]

If any party is seeking costs and the parties
    cannot agree on the disposition of costs, they may make brief written
    submissions of no more than two pages, plus a costs outline, within seven days
    of the release of these reasons.

Released: April 1, 2021 L.R.

L.B. Roberts J.A.

M. Jamal J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Foster v. West, 2021 ONCA 263

DATE: 20210423

DOCKET: M52387 (C68225)

Fairburn A.C.J.O. (Motion Judge)

BETWEEN

Rebecca Mae (Swirsky) Foster

Applicant (Appellant)

and

James John West

Respondent (Respondent)

Ken Nathens and Denniel Duong, for the appellant

Mackenzie Dean and Kirsten Hughes, for
the respondent

Jane Stewart and Mary Birdsell, for the
proposed intervener Justice for Children and Youth

Heard: April 22, 2021 by video conference

REASONS FOR DECISION

[1]

This is a motion for leave to intervene as a
friend of the court, pursuant to r. 13.02 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, in an appeal from an order of McLaren J., dated February
26, 2020, resolving a long-running, high conflict custody and access matter
involving two children of a former marriage. The two children are now 11 and 15
years of age.

[2]

The children were not represented by the Office
of the Childrens Lawyer at trial. Even so, the appellant mother presented
evidence from various professionals purporting to express the views and
preferences of the children. In contrast, the respondent father presented
evidence of various professionals who focussed upon the impact of conflict and
alienation on the children.

[3]

The trial judge found that the childrens views
and preferences [were] not helpful in arriving at the decision. The trial
judge did not put any weight on the views and preferences because she
considered them to be not reliable. Ultimately, the trial judge ordered equal
time sharing between the parties and custody (decision-making responsibility
under the recent March 1, 2021 amendments to the
Divorce Act
, R.S.C.
1985, c. 3 (2nd Supp.), s. 2(1)) to the respondent.

[4]

Justice for Children and Youth (JFCY) seeks
leave to intervene as a friend of the court in the appeal that is currently
listed to be heard on May 7, 2021.

[5]

JFCY is a specialty legal aid clinic that has
been in existence for almost 40 years. Its mandate includes the promotion and
protection of the rights of children. JFCY has significant expertise providing
direct legal representation to vulnerable youth, including in the area of
family law. JFCY was also involved in assisting with submissions made in
relation to the recent amendments to the
Divorce Act
, including those
that involve the determination of the best interests of the child: see
Divorce
Act
, s. 16. This court and others have benefited from JFCYs expertise as
an intervener in the past.

[6]

If granted leave to intervene, JFCY commits to
refrain from taking a position on the outcome of the appeal, instead focussing
its arguments upon the rights and interests of children at large. In broad
strokes, JFCY proposes to address: (1) the recent amendments to the
Divorce
Act
and how those amendments affirm and clarify existing components of
the best interests of the child analysis; (2) the need to ensure that children
have an opportunity to have their views and preferences heard by the court, which
includes children having an independent voice in family law proceedings,
appropriate to their age, stage of development, and maturity; (3) the fact
that expressions of alignment and allegations of alienation are an insufficient
basis upon which to dispense with childrens rights to be heard and to have
their own preferences and views expressed and meaningfully considered; and (4)
the need to keep the best interests of the child at the centre of all
decision-making regarding children, not just decisions related to parenting
time and contact. As it relates to the first argument, JFCY highlights that
this is the first time that this court will be called upon to interpret the
amendments to the
Divorce Act
.

[7]

While the appellant consents to the intervention,
the respondent is opposed to JFCYs motion to intervene.

[8]

The appellant filed no materials on this motion
and made limited oral submissions in favour of intervention, noting that JFCY
has an expertise that it can bring to the appeal that the appellant is unable
to advance. While the appellant argues that the interpretation of the new
provisions within the
Divorce Act
will be generally important on
appeal, in the sense that they inform how the trial judge should have
approached the consideration of the childrens best interests, the appellant
acknowledges that the amendments were not operative at the time of the trial
judges decision and, therefore, the trial judge did not err in failing to apply
the amendments.

[9]

The respondent argues that JFCY should be denied
intervener status for a number of reasons, including that: (1) this is an
entirely private dispute that should require a more onerous and stringent
standard before permitting an intervention; (2) the arguments of the proposed intervener
are not unique and there would be no need for the input of the proposed intervener,
as JFCY will be unable to make a useful contribution in this fact-specific
appeal; and (3) the lateness of this motion to intervene, being brought so
close to the hearing date, will prejudice the respondent, in the sense that it
will not give the respondent sufficient time to respond.

[10]

The test for intervention is well-established
and needs no amplification. As Dubin C.J.O. held in
Peel (Regional
Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990),
74 O.R. (2d) 164 (C.A.), at p. 167:

Although much
has been written as to the proper matters to be considered in determining
whether an application for intervention should be granted, in the end, in my
opinion, the matters to be considered are the nature of the case, the issues
which arise and the likelihood of the applicant being able to make a useful
contribution to the resolution of the appeal without causing injustice to the
immediate parties.

[11]

I start with the proposition that this is a
private dispute. Where intervention is sought in a private dispute of this
nature, as opposed to one involving the state, the standard to be met by the
proposed intervener is more onerous or more stringently applied:
Jones v.
Tsige
(2011), 106 O.R. (3d) 721 (C.A.), at para. 23.

[12]

Looking at the matter through that lens, I note the
appellant acknowledged in oral submissions that this court will not be asked to
apply the amendments to the
Divorce Act

in this case, as the
trial judge did not err in failing to apply the amendments. Rather, the appellant
argues that the interpretation of the
Divorce Act
as it existed at the
time that the trial judge gave her decision should be informed by the amendments
regarding the best interests of the child. Therefore, in my view, this appeal
does not bring the interpretation and application of the amendments of the
Divorce
Act

as squarely into focus as the proposed intervener suggests.

[13]

Further, I note that the appellant is
represented by senior counsel and, to the extent that the amendments to the
Divorce
Act
might

shed some light on the trial judges approach to the best
interests of the children in this case, I have no doubt that the appellant can
articulate that position without the assistance of an intervener.

[14]

As for the balance of the issues that JFCY
wishes to raise, none of them are novel, in the sense that this court will be
called upon to weigh in on something of first impression. While I have no doubt
that JFCY could make a useful contribution on these issues, this would be the
case on many similar appeals heard by this court, including those arising from
public disputes.

[15]

Regardless, what really tips the balance against
the intervention in this case is the timing of the application and the
prejudice that will arise to the respondent if intervener status to JFCY is
granted. The order appealed from is dated February 26, 2020:
Swirsky v.
West
, 2020 ONSC 1213. The appellants notice of appeal was filed in this
court on March 25, 2020. JFCY first put the respondent on notice of their
intention to seek leave to intervene on March 26, 2021. The earliest motion
date available to hear this matter was April 22, 2021. At the same time that
the matter was set down for the April 22, 2021 hearing, the court communicated
with the proposed intervener and parties about a filing schedule, including
that the proposed intervener file their materials no later than April 12,
2021.

[16]

At the hearing of the motion yesterday, April
22, 2021, inquiries were made as to whether the proposed intervener, if granted
intervener status, could file their factum by today, April 23, 2021, two weeks
before the hearing of the appeal. That was not possible. The earliest date
possible was said to be April 28, 2021. I note that the court has since
received a letter that the proposed intervener could file a factum one day
earlier, that is by April 27, 2021. Assuming this earlier filing date were to
be granted, that would still only leave seven court days before the hearing of
the appeal.

[17]

While the appellant takes no issue with the
proposed filing date, the respondent argues that they will be prejudiced by
this late filing. Counsel for the respondent have obligations over the week of
April 26, 2021, which I accept to be the case, that would prevent them from
considering the new factum until the week of May 3, 2021. This would be the
same week of the scheduled appeal. The respondent would need a proper
opportunity to reply to JFCYs factum. Even the appellant said that they may
wish to reply. In any event, for the respondent, working toward a reply could
not commence until the Monday of the week of the hearing of the Friday appeal. Furthermore,
in a letter sent to the court following oral submissions, counsel for the
respondent reiterated their inability to respond to JFCYs factum if it were to
be filed on April 27, 2021.

[18]

In my view, the respondent has a very strong
position when it comes to prejudice. This is not to mention that an
intervention of this nature is meant to assist the court, yet that assistance
can be significantly diminished when the materials are being filed at the last
minute.

[19]

Although the proposed intervener was under no
obligation to do so, it is often the case that when a motion to intervene is
brought, and especially when it is brought on such short notice, a draft
proposed factum is provided with that application. While the proposed
intervener provided a very high-level overview of their main arguments,
bringing a draft proposed factum would have permitted the parties to know the
proposed interveners precise position and would have allowed for an immediate
filing should the motion be granted. The date of the hearing of the appeal has
been known for some time, certainly prior to JFCYs first notice to counsel of
their wish to seek intervener status.

[20]

None of these comments should be taken as
criticisms of JFCY or as a failure to appreciate the very important work done
by the organization. I do not question JFCYs expertise, which has been of
assistance to this court in the past. Even so, when I balance the nature of
this appeal against the nature of the contribution that could be made to the
issues in dispute, and the nature of the prejudice that could arise from
allowing perfection of such a late intervention, I conclude that the motion
must be dismissed.

[21]

JFCY is a publicly funded, public interest
organization. This was a brief motion involving the application of well-known
principles of law regarding an intervention pursuant to r. 13.02 of the
Rules
of Civil Procedure
. The motion was well motivated. Therefore, costs will
not be awarded to the respondent.

Fairburn A.C.J.O.