COURT OF APPEAL FOR ONTARIO

CITATION: Fercan Developments Inc. v. Canada
    (Attorney General), 2021 ONCA 251

DATE: 20210422

DOCKET: C67707 & C67710

van Rensburg, Pardu and Huscroft
    JJ.A.

BETWEEN

Fercan Developments Inc. and
    GRVN Group Inc.

Plaintiffs/Responding Parties

(Respondents)

and

Attorney General of Canada, Her
    Majesty the Queen in Right of Ontario on Behalf of the Ontario Provincial
    Police, and Stuart Hayhurst

Defendants/Moving Parties

(Appellants)

Judie Im and Baaba Forson, for the
    appellants, Ontario Provincial Police and Stuart Hayhurst

Joël Robichaud and James
    Schneider, for the appellant, The Attorney General of Canada

William Friedman, Patrick
    Bakos, Judy G. Hamilton, Brian H. Greenspan and Naomi M. Lutes, for the
    respondents, Fercan Developments Inc. and GRVN Group Inc.

Heard: in writing, with
    supplementary submissions in writing

On appeal from the judgment of Justice Heather
    McArthur of the Superior Court of Justice, dated October 10, 2019, with reasons
    reported at 2019 ONSC 5780.

REASONS FOR DECISION

[1]

The sole issue on these appeals is whether the
    motion judge erred when she concluded, in applying s. 5(1)(a)(iv) of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Schedule B (the
Limitations Act
),
    that the limitation period had not expired for the respondents claims against
    the appellants, and she refused to dismiss their claims asserted in the
    consolidated action as statute-barred.

[2]

For the reasons that follow, we dismiss the
    appeals.

FACTS

[3]

The respondents, Fercan Development Inc.
    (Fercan) and GRVN Group Inc. (GRVN), brought actions in the Superior Court against
    the appellants, the Attorney General of Canada (the AGC), Her Majesty the
    Queen in Right of Ontario on Behalf of the Ontario Provincial Police and Detective
    Constable (DC) Stuart Hayhurst (together, the OPP Defendants), claiming
    malicious prosecution, negligent investigation, misfeasance in public office
    and civil conspiracy.

[4]

The actions arose out of the appellants
    unsuccessful attempts to obtain forfeiture of certain properties of the
    respondents which housed large scale marihuana grow operations, and the net
    proceeds of those properties. As the motion judge observed, [t]he facts
    leading to [the] summary judgment motion have spawned significant litigation
    over the course of almost a decade. There have been numerous judicial decisions
    detailing the various twists and turns this matter has taken over the years.

[5]

The motion judge set out much of the relevant
    chronology in her reasons. It is sufficient here to provide only the following
    brief outline:

·

The AGC brought an application for forfeiture
    under the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19 (the criminal forfeiture application). DC
    Hayhurst, an OPP officer, swore affidavits in support of the criminal
    forfeiture application and he testified at the hearing.

·

On September 11, 2013, West J. of the Ontario
    Court of Justice dismissed the criminal forfeiture application. West J. stated,
    among other things, that the evidence overwhelmingly leads to the conclusion
    that Fercan and GRVN, or the directing minds of those corporations, are
    innocent of any complicity or collusion.

·

DC Hayhurst referred the matter to the Attorney
    General of Ontario (the AGO), which commenced forfeiture proceedings under
    the
Civil Remedies Act
,

S.O. 2001
, c.
    28 (the civil forfeiture application). On April 23, 2014, the AGO was
    unsuccessful in its motion to preserve the proceeds of the respondents
    properties for the civil forfeiture application. Leave to appeal this decision
    was refused on June 26, 2014.

·

On June 25, 2014, West J. granted the
    respondents application for costs of the criminal forfeiture application,
    concluding that there had been a marked and unacceptable departure from the
    reasonable standard expected of the Crown, and that, in the unique
    circumstances of this case, costs should be awarded. On January 21, 2015, he
    ordered the AGC to pay the respondents costs of $570,000.

·

On April 14, 2016 this court dismissed an appeal
    of the costs order of West J., upholding his findings of Crown misconduct, and
    concluding that the Crown had exercised the coercive power of the state and
    forced the respondents to participate in a lengthy and onerous proceeding to
    defend their legitimate property interests and had launched a completely
    meritless application:
R. v. Fercan Developments
    Inc.
,

2016 ONCA 269, 130 O.R. (3d) 321, at
    paras. 125, 128.

·

The respondents commenced an action against the
    AGC on May 31, 2016, and against the OPP Defendants on September 19, 2016.
[1]
The two actions were
    consolidated in January 2017.

SUMMARY JUDGMENT MOTION

[6]

The appellants moved for summary judgment to
    dismiss the actions. The issue was whether the respondents claims against the
    appellants were discovered, or ought reasonably to have been discovered, within
    the meaning of ss. 5(1)(a) and (b) of the
Limitations Act
, more than
    two years before each action was commenced. The appellants argued that the
    two-year limitation period ran from September 11, 2013, the date that West J.
    dismissed the AGCs criminal forfeiture application.

[7]

The respondents filed an affidavit in response
    to the motions. The principal of Fercan, after setting out the chronology of
    the proceedings, stated that it was not until this court upheld the finding of
    West J. of a marked and unacceptable departure from the reasonable standards
    expected from the prosecution, that it appeared there would be finality to the
    numerous interrelated proceedings and that it would be appropriate for Fercan
    to bring a claim for damages against the various government entities resulting
    from the forfeiture proceedings. There was no cross-examination on the
    affidavit.

[8]

The motion judge concluded that the first three
    elements of the discoverability test, pursuant to ss. 5(1)(a)(i), (ii) and
    (iii) of the
Limitations Act
, were met as of September 11, 2013, findings
    that are not challenged on appeal. It was at that point that the respondents
    knew they had suffered injury, loss or damage that had been caused by the acts
    or omissions of the appellants. The motion judge observed that the respondents
    at that time were aware that they were innocent third-parties who had been
    forced to defend their legitimate property interests in a meritless application
    in onerous and lengthy proceedings and that [t]hey also knew, or ought to
    have known, that the criminal forfeiture proceedings had terminated in their
    favour.

[9]

The motion judge turned to consider s.
    5(1)(a)(iv): when did the respondents know, or when ought they reasonably to
    have known that, having regard to the nature of the injury, loss or damage, a
    proceeding would be an appropriate means to seek to remedy it?

[10]

The motion judge concluded that, pursuant to s.
    5(1)(a)(iv), it was not appropriate to commence proceedings until, at the
    earliest,
June 26, 2014
, when the civil forfeiture proceedings came to
    an end. This meant that the action against the AGC on May 31, 2016 was not
    statute-barred. The motion judge went on to find that it was not appropriate to
    commence proceedings, and the respondents claims against all appellants were not
    discovered, until
April 14, 2016
, when this court upheld the costs order
    of West J. This meant that the action against the OPP Defendants, which was
    commenced on September 19, 2016, was also commenced within the applicable limitation
    period.

THE APPEALS

1.

Standard of Review

[11]

Whether a limitation period expired before an
    action was commenced is a question of mixed fact and law, and subject to review
    on appeal based on a palpable and overriding error:
Longo v. MacLaren Art
    Centre Inc.
, 2014 ONCA 526, 323 O.A.C. 246, at para. 38;
Kassburg v.
    Sun Life Assurance Company of Canada
, 2014 ONCA 922, 124 O.R. (3d) 171, at
    para. 40. This is the case whether the determination is made at trial or in a
    motion for summary judgment:
Crombie Property Holdings Ltd. v.
    McColl-Frontenac Inc.
, 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 31,
    leave to
appeal
refused, [2017] S.C.C.A. No. 85. Findings of fact by the court
    below are subject to review on a palpable and overriding error standard. A
    palpable and overriding error is an obvious error that is sufficiently
    significant to vitiate the challenged finding of fact:
Longo
, at
    para. 39. However, where there is an extricable error of principle, the
    standard of review is correctness:
Housen v. Nikolaisen
, 2002 SCC 33, [2002]
    S.C.R. 235, at paras. 8, 36.

[12]

Contrary to the appellants arguments, this is
    not a case that involves the interpretation of a statutory provision, namely s.
    5(1)(a)(iv) of the
Limitations Act
, where the standard of review is
    correctness. Nor, as we explain, is there any demonstrated error of law or
    principle in the trial judges analysis, or any palpable and overriding error
    in her findings of fact or her application of the legal test to such findings.

2.

The Legal Test

[13]

The motion judge applied the correct legal
    framework. Citing
Nasr Hospitality Services Inc. v. Intact Insurance
,
    2018 ONCA 725, 142 O.R. (3d) 561, she recognized that determining whether an
    action is statute-barred or declaring when a claim was discovered requires the
    court to make specific findings of fact about each element set out in s. 5 of
    the
Limitations Act
, and she went on to make such factual findings.

[14]

After concluding that the first three elements
    of the discoverability test under ss. 5(1)(a)(i), (ii) and (iii) were met as of
    September 11, 2013, the motion judge addressed s. 5(1)(a)(iv). In doing so, she
    cited the relevant jurisprudence from this court, noting that the determination
    under s. 5(1)(a)(iv) is a fact-specific exercise (
407 ETR Concession
    Company Limited v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 34,
    leave to appeal refused, [2016] S.C.C.A. No. 509) and that the issue was
    whether the limitation period should be suspended because a proceeding would
    be premature (
Presidential MSH Corporation v. Marr Foster & Co. LLP
,
    2017 ONCA 325, 135 O.R. (3d) 321, at para. 27). The motion judge recognized
    that s. 5(1)(a)(iv) reflects that parties should be discouraged from rushing to
    litigation, while delay for tactical reasons would not suspend the running of
    the limitation period:
Markel Insurance Company of Canada v. ING Insurance
    Company of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.

[15]

The appellants argue that the motion judges
    decision significantly expands the application of the appropriate means
    element of the discoverability test under s. 5(1)(a)(iv) beyond any previous
    jurisprudence from this court, and that it injects uncertainty into the law of
    limitations. They contend that the motion judge relied on irrelevant factors,
    and that she ought to have restricted her analysis to a consideration of
    whether the respondents were pursuing an alternative means of remedying their
    alleged losses, such that it was not yet appropriate for them to commence an
    action in respect of those losses.

[16]

We disagree. Contrary to the submissions of the
    appellants, the motion judge properly recognized that there were not simply two
    categories of cases in which it might not be legally appropriate to start a
    proceeding despite the claim having been discovered, within the meaning of s.
    5(1)(a)(i)-(iii):
Nasr
, at para. 51. The motion judge did not err when
    she considered all of the relevant circumstances and not simply whether the
    forfeiture proceedings provided an alternative means for the respondents to remedy
    their alleged losses. She was required to consider the nature of the injury,
    loss or damage under s. 5(1)(a)(iv), as well as, under s. 5(1)(b), using a
    modified objective test, what a reasonable person with the abilities and in
    the circumstances of the respondents ought to have known:
Presidential
,

at para. 18;
Service Mold + Aerospace Inc. v. Khalaf
, 2019 ONCA
    369, 146 O.R. (3d) 135, at para. 32. While previous cases can assist in identifying
    certain general principles, whether a proceeding would have been an appropriate
    means to seek to remedy a claimants damage, injury or loss will turn on the
    facts of each case and the abilities and circumstances of the particular
    claimant:
Presidential
, at para. 19;
ETR Concession Company
,
    at para. 34.

3.

Application of the Test to the Facts

[17]

As already noted, the motion judge first found
    that the respondents knew or ought to have known that an action would be an
    appropriate means under s. 5(1)(a)(iv) in the circumstances of this case,
    at the earliest, on
June 26, 2014
, when the civil forfeiture proceedings
    came to an end (which meant that the action against the AGC was not
    statute-barred). The motion judge went on to conclude the respondents did not
    know, nor ought to have known, that an action would be an appropriate means
    until
April 14, 2016
, when this court upheld the costs order of West J.
    (which meant that the action against the OPP Defendants was also commenced
    within the applicable limitation period).

[18]

We are not persuaded that any palpable and
    overriding error has been demonstrated by the appellants in respect of either
    date.

A.

The June 26, 2014 date

[19]

In concluding that the time for commencement of
    an action against the AGC began to run at the earliest on June 26, 2014, the
    motion judge relied on the civil forfeiture proceedings that were commenced and
    pursued by the appellants against the respondents. She observed that the
    appellants, in undertaking such proceedings, were pursuing a process that, if
    successful, could have left the respondents with little to no loss to claim. We
    agree with the motion judges observation that it is important not to conflate
    the considerations under the first three elements of the discoverability test
    with the appropriate means element set out in s. 5(1)(a)(iv). The question is
    not, as the appellants suggest, whether an action
could have
been
    brought by the respondents, but when it was
appropriate
to do so. While
    knowledge of the extent of a plaintiffs damages is not required under (i) to
    (iii), the motion judge was entitled to take into consideration the ongoing
    forfeiture proceedings that the parties were engaged in, when determining under
    s. 5(1)(a)(iv) whether it was appropriate for the respondents to bring an
    action. She concluded that, in the particular circumstances, it would have been
    premature to require the respondents to launch a lawsuit, as they were embroiled
    in the civil forfeiture application, a related matter brought against them by
    the state with all of its resources, which could have rendered their lawsuit non-viable
    and unworthy of pursuing.

[20]

We see no error in the motion judges determination
    that it was premature for the respondents to commence their action until after
    the civil forfeiture proceedings were completed on June 26, 2014. She came to
    this conclusion after considering all of the relevant circumstances. The facts
    were unusual. Despite the fact that the AGC was unsuccessful in obtaining an
    order for criminal forfeiture and was subject to an order for costs that was
    critical of its conduct, the provincial authorities commenced civil forfeiture
    proceedings with the same objective  to seize the proceeds of sale of the
    respondents properties. DC Hayhurst was involved in both sets of proceedings. If
    the civil forfeiture proceedings had been successful, no doubt all of the
    appellants would have had a strong defence to any action that was commenced by
    the respondents. The conclusion, on this record, that it was premature for the
    respondents to pursue a civil action while they were continuing to oppose the
    forfeiture proceedings, reveals no error.

[21]

Accordingly, in upholding the motion judges
    conclusions with respect to the June 26, 2014 date, we reject the AGCs
    argument that the action against it was statute-barred.

B.

The April 14, 2016 date

[22]

The motion judge concluded that the actions
    against all of the appellants were commenced in time because the time only
    began to run under s. 5(1)(a)(iv) in respect of the claims against all appellants
    on April 14, 2016, when this court dismissed the appeal of the order of West J.
    awarding costs of the criminal forfeiture proceedings against the AGC.

[23]

The motion judge recognized that West J.s costs
    decision directly and explicitly addressed the conduct of the federal Crown,
    and that he had determined that the Crowns conduct exhibited a marked and
    substantial departure from the reasonable standards expected of the Crown.
    Nevertheless, she observed that costs against the Crown in such proceedings are
    a rare and extraordinary remedy, that the AGCs appeal specifically sought to
    attack the findings of Crown misconduct, that there was precedent for this
    court taking a very different view, and accordingly, that there was a clear
    risk that West J.s findings of misconduct might be rejected on appeal, which
    would have seriously undermined any action brought by the respondents. The fact
    that there was another ongoing proceeding  the appeal of West J.s costs
    decision  that could have impacted the viability of the respondents action
    was relevant to the application of s. 5(1)(a)(iv) in the circumstances of this
    case.

[24]

The motion judge rejected the argument that the
    AGCs appeal of the costs order was relevant only to the running of the
    limitation period against the AGC, and not against the OPP Defendants. She
    noted the connection between the OPP Defendants and the AGC in advancing the
    criminal forfeiture application. We do not agree with the appellants
    contention that she erred in treating the OPP Defendants and the AGC as if they
    were one entity. Instead, she properly referred to the substantial similarities
    between the claims advanced against all of the appellants, and the specific
    allegations of misconduct against the OPP Defendants in the course of the
    criminal forfeiture proceedings. She concluded that the conduct and actions of
    DC Hayhurst were at issue in both the criminal forfeiture costs decision and
    the civil litigation, and that this courts decision on the costs appeal could
    have impacted the viability of an action against the OPP Defendants.

[25]

We see no palpable and overriding error in the
    motion judges conclusion that the time began to run under s. 5(1)(a)(iv) in
    respect of the claims against all appellants on April 14, 2016, when this court
    released its decision dismissing the appeal from West J.s costs order. Again,
    the circumstances were highly unusual. The same parties were already involved
    in litigation commenced and pursued by the appellants, in which the appellants
    alleged misconduct had taken centre stage. In pursuing the appeal, the AGC did
    not accept and sought to overturn the findings of West J., ensuring that
    whether or not there was prosecutorial misconduct remained a live issue until
    it was determined by this court. As the motion judge reasonably observed, there
    was a clear risk of a successful appeal, which would have impacted the viability
    of an action based on the same allegations of prosecutorial misconduct.

[26]

As for the claims against the OPP Defendants,
    they are without question intertwined with the claims against the AGC in the
    now consolidated action. The actions of DC Hayhurst, who is alleged to have
    been directly involved in the criminal forfeiture proceedings and to have taken
    the lead in initiating the civil forfeiture proceedings, were part of the misconduct
    found by West J. in awarding costs against the AGC.

[27]

After assessing the claims against all parties,
    it was open to the motion judge to conclude, as she did, that a successful
    appeal of the costs decision would have undermined the claims against all of
    the appellants, including the OPP Defendants. This was not, as the appellants
    contend, a tactical decision on the part of the respondents, as in
Markel
,
    or simply a question of a plaintiff waiting until the end of other proceedings
    that might improve their chances of success in a civil action, as in
Sosnowski
    v. MacEwen Petroleum Inc.
, 2019 ONCA 1005, 441 D.L.R. (4th) 393. Rather,
    as in
Winmill v. Woodstock (Police Services Board)
, 2017 ONCA 962, 138
    O.R. (3d) 641, at para. 31, leave to appeal refused, [2018] S.C.C.A. No. 39,
    the result of the proceedings in which the parties were already involved,
    including the determination by this court of the prosecutorial misconduct
    allegations, would have been a crucial, bordering on determinative factor in
    whether the respondents had a civil claim to pursue.

[28]

Accordingly, in upholding the motion judges
    conclusions with respect to the April 14, 2016 date, we reject the appellants arguments
    that the claims against them asserted in the now consolidated action are statute-barred.

DISPOSITION

[29]

For these reasons, the appeals are dismissed. The
    respondents are entitled to their costs of the appeals against the appellants.

[30]

If the parties are unable to agree on the amount and/or
    allocation of such costs, the court will receive written submissions limited to
    three pages each (in addition to the respondents costs outline), as follows:
    from the respondents within 20 days of these reasons, and from the appellants
    within 15 days thereafter, with reply submissions, if any, within ten days of
    receipt of the submissions from both respondents. Written costs submissions are
    to be sent to the court electronically at the following email address: coa.e-file@ontario.ca.

K.
    van Rensburg J.A.

G.
    Pardu J.A.

Grant
    Huscroft J.A.

[1]
On
    June 15, 2016 the respondents had served the OPP Defendants with a Notice of
    Claim under s.
7 of the
Proceedings Against the Crown Act
, R.S.O. 1990, c.
    P.27, as amended.


COURT OF APPEAL FOR ONTARIO

CITATION: Fermar Paving Limited v. Ontario
    (Transportation), 2021 ONCA 111

DATE: 20210219

DOCKET: C68358

Doherty, Pepall and Thorburn
    JJ.A.

BETWEEN

Fermar Paving Limited

Applicant (Appellant)

and

Her Majesty the Queen in Right
    of Ontario, as represented by the Minister of Transportation

Respondent (Respondent in Appeal)

Eric A. F. Grigg and James A. LeBer,
    for the appellant

Antonin I. Pribetic and Alex Redinger,
    for the respondent

Heard and released orally:
    February 17, 2021 by Video Conference

On appeal from the judgment of Justice
    Jonathon C. George of the Superior Court of Justice, dated April 27, 2020.

REASONS FOR DECISION

[1]

The outcome of the application turned on the interpretation
    of interrelated and somewhat complex provisions in standard form agreements
    entered into by the parties. The terms of the parties agreement were found in
    various documents, all of which were standard in the road construction
    industry.

[2]

We are in substantial agreement with the reasons
    of the application judge, reported at 2020 ONSC 2603 and, in particular, his
    observations at paras. 32 and 43-49. The appeal is dismissed. The respondent is
    entitled to costs of the appeal, fixed at $7,100, inclusive of disbursements
    and relevant taxes.

Doherty J.A.

S.E. Pepall J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fitzgerald v. Reaume, 2021 ONCA 330

DATE: 20210518

DOCKET: C68228

Juriansz, Huscroft and Jamal JJ.A.

BETWEEN

Stephen Fitzgerald

Plaintiff (Appellant)

and

Leslie Reaume

Defendant (Respondent)

Michael N. Bergman, for the appellant

Trevor Guy, for the respondent

Heard: May 10, 2021 by videoconference

On appeal from the order of Justice Calum U.C. MacLeod of
    the Superior Court of Justice, dated March 2, 2020.

REASONS FOR DECISION

[1]

This is an appeal from the decision of the Superior Court judge
    [the judge] dismissing the appellants action pursuant to Rule 2.1.01
of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

[2]

The claim sought $1,050,000 in damages against
    the respondent, a Vice‑Chair at the Human Rights Tribunal of Ontario. The
    action arose out of a hearing into a human rights complaint against the
    appellant, over which the respondent was presiding. The appellant alleged that
    the respondent failed to conduct the hearing in accordance with the required
    rules, norms, and standards, and that her actions concerning an adjournment in
    the proceedings during which the appellant sought medical attention from
    paramedics infringed his rights to health, dignity, and liberty.

[3]

The respondent wrote to the Registrar of the
    Superior Court, copying the appellant, requesting an order under r. 2.1
    dismissing the claim. The appellant wrote to the Registrar stating that he
    contested the respondents submissions and would provide reasons should the
    court consider the request to dismiss.

[4]

The judge dismissed the claim without receiving
    submissions from the parties. He noted that the appellants concerns regarding
    the human rights hearing should have been raised before the Tribunal and that
    the only jurisdiction the court had was by way of an application for judicial
    review in the Divisional Court. The appellant had no right to sue the
    respondent concerning the manner in which she conducted the hearing. Moreover,
    the statement of claim disclosed no cause of action and could not be saved. It
    was, on its face, an improper pleading and a frivolous action.

[5]

The principles governing the operation of r. 2.1
    are set out
in
Visic v. Elia Associates Professional Corporation
, 2020 ONCA 690, at para. 8. It is well established that the
    decision of the judge is a discretionary decision that is entitled to
    deference. We see no basis to interfere with the judges decision in this case.

[6]

We accept, as the appellant submits, that the
    statement of claim in this case is not marred by the sorts of inflammatory
    rhetoric or hyperbolic claims often seen in a frivolous and vexatious action.
    Nevertheless, the claim cannot succeed given the respondents immunity from
    suit, and this immunity precludes the pleadings from being saved. It was open
    to the judge to conclude that this is the sort of litigation that r. 2.1 was
    designed to weed out. We do not accept the appellants attempt to avoid the
    immunity by distinguishing the respondents actions conducting the hearing from
    those taken when she was not physically present in the hearing room.

[7]

Nor do we accept that the judges decision to
    not to permit submissions violated the duty of fairness. Determinations under
    r. 2.1.01(1) are to be made in a summary manner and pursuant to subsection (3)
    may, in the courts discretion, be made without written submissions. The judge
    considered the matter and stated that he would have dealt with the request
    pursuant to a different procedure if it were decided on the basis of a failure
    to comply with either the
Crown Liability and Proceedings Act
, 2019
,

S.O. 2019, c. 7, Sched. 17

or the
Limitations Act
, 2002
,

S.O. 2002, c. 24, Sched.
    B.

However, given that the action could not possibly
    succeed, it was open to the judge to conclude that no purpose would be served
    in putting the plaintiff on notice and providing an opportunity to make written
    submissions.

[8]

The appeal is dismissed.

[9]

The respondent does not seek costs and none are
    awarded.

R.G. Juriansz
    J.A.

Grant Huscroft
    J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney
    General), 2021 ONCA 313

DATE: 20210510

DOCKET: M52372 (C69253)

Paciocco J.A. (Motion Judge)

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. Francois dAssise, Institut des Soeurs du
    Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de
    Jésus-Marie, Les Soeurs de lAssomption de la Sainte Vierge, Les Soeurs de
    lAssomption de la Saint Vierge de lAlberta, Les Soeurs de la Charité de
    St.-Hyacinthe, Les Oeuvres Oblates de lOntario, Les Résidences Oblates du
    Québec, La Corporation Episcopale 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 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 Soeurs 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

(Respondents/
Responding Party
)

In the Matter of the Request for Directions

by Dr. Edmund Metatawabin

and by IAP Claimants T-00185, S-20774 and
    S-16753

Pertaining to St. Annes Indian Residential
    School

Requestors

(Appellants/Moving
  Parties)

Proceedings
    under the
Class Proceedings Act
, 1992
, S.O. 1992, c. 6
Michael Swinwood and Fay K. Brunning,
    for the moving parties
Catherine A.
    Coughlan, Brent Thompson and Eve Coppinger, for the responding party
Heard: April 22, 2021 by video
    conference
ENDORSEMENT
OVERVIEW
[1]

The motions before me relate to claims under the
    Independent Assessment Process (the IAP) made against the Attorney General of
    Canada (Canada), the responding party, by former residents of St. Annes Indian
    Residential School (St. Annes IRS) pursuant to the Indian Residential School
    Settlement Agreement (the IRSSA).
[2]

The moving parties include three former residents
    of St. Annes IRS who made claims under the IAP. They contend that at the time
    their matters were resolved, Canada had failed to fulfill its disclosure
    obligations, and still has not done so. In a request for directions (RFD) initiated
    on May 12, 2020 (Metatawabin RFD #2), the moving parties seek a declaration
    that Canada breached previous disclosure orders made on January 14, 2014 and
    June 23, 2015 (the Disclosure Orders). In Metatawabin RFD #2, the moving
    parties also seek an order compelling Canada to revise documentation used in
    their IAP claims within 30 days, so the claimants can determine whether they
    should seek to re-open those claims. Finally, Metatawabin RFD #2 seeks a preservation
    order preventing Canada from destroying documents that pertain to the St.
    Annes IRS IAP claims.
[3]

Dr. Edmund Metatawabin is also a moving party.
    Dr. Metatawabin is a former St. Annes IRS resident and a distinguished
    Indigenous leader who is actively involved in IRSSA matters relating to St.
    Annes IRS. In this matter he has offered to represent the interests of St.
    Annes IRS abuse survivors whose claims may have been adversely affected by allegedly
    unfair disclosure. Many of these survivors are unknown to the moving parties
    because their identities are confidential under the IRSSA.
[4]

The moving parties are pursuing their claims in
    Metatawabin RFD #2 before Glustein J. under the IRSSAs Court Administration
    Protocol (the CAP). Ordinarily, Perell J., the Ontario Supervising Judge for
    IRSSA matters, would be hearing Metatawabin RFD #2. However, Perell J. recused
    himself from Metatawabin RFD #2 due to reasonable apprehension of bias concerns
    arising out of a related proceeding.
[5]

On March 18, 2021, Canada filed an RFD
    requesting that an Independent Special Advisor (ISA) be appointed to conduct
    an independent review of certain St. Annes IRS IAP claims. On April 20, 2021,
    Perell J. granted the request. The moving parties seek to stay that order (the
    Order Under Appeal) pending appeal. The moving parties contend that the Order
    Under Appeal improperly undercuts the Metatawabin RFD #2 proceedings and provides
    for a process not contemplated in the IRSSA. Moreover, the moving parties say that
    the Order Under Appeal was secured in an abusive manner by Canada in an unfair,
    secret proceeding that did not comply with the CAP, and was issued by a judge who
    should have recused himself in light of his earlier recusal from Metatawabin
    RFD #2.
[6]

The moving parties also ask for an interim preservation
    order covering all documents possessed by government officials relating to St.
    Annes IRS IAP claimants.
[7]

Of course, it is not my role as a motion judge
    to resolve the underlying dispute or to comment on the fairness or wisdom of
    decisions that have been taken below. My sole function is to determine whether
    a stay pending appeal is in the interests of justice based on established legal
    standards, and to determine whether I should exercise my discretion to issue
    the requested preservation order.
[8]

For reasons that follow, I am not persuaded it
    is in the interests of justice to stay the Order Under Appeal. Nor, in my view,
    do the interests of justice call for a preservation order. I would therefore
    dismiss the motions before me.
BACKGROUND AND
    MATERIAL FACTS
The IRSSA and
    the IAP
[9]

The IRSSA is the settlement agreement for
    several class actions and civil claims relating to sexual and physical abuse of
    former students at Canadian residential schools. In exchange for forfeiting
    their right to sue, potential claimants have the option of participating in the
    IRSSAs IAP.
[10]

Of importance, Canada has responsibilities
    relating to the creation of the evidentiary record to be used in assessing IAP
    claims. Canada is required to disclose relevant documents in its possession and
    control, and it is obliged to use this information to produce a narrative
    report (Narrative) relating to each residential school, as well as person of
    interest reports (POI Reports) for each claimant for use in the IAP. These
    documents can play an instrumental role in determining the success of IAP
    claims.
[11]

The CAP governs the process for RFDs brought
    under the IRSSA. The CAP is administered by nine Supervising Judges; one from
    each of the affected provincial and territorial jurisdictions. Pursuant to the
    terms of the CAP, two Administrative Judges are selected from among the
    Supervising Judges. Perell J., the Ontario Supervising Judge, is the current Eastern
    Administrative Judge (EAJ), and his order is the Order Under Appeal. I shall
    refer to him as the EAJ in this endorsement. The current Western Administrative
    Judge (WAJ) is the British Columbia Supervising Judge.
[12]

Any party, counsel, or other entity with
    standing may bring an RFD to the Administrative Judges relating to all matters
    that require court orders, directions or consideration during the course of the
    administration of the IRSSA. After receiving an RFD, the EAJ and WAJ must determine
    whether a case conference or a hearing is required. Case conferences may be
    conducted by one or both Administrative Judges. If a hearing is required, the Administrative
    Judges assign the hearing of the RFD to the Supervising Judge from the court
    with jurisdiction over the matter.
[13]

Although all IAP claims have been completed, and
    the IAP ceased operations on March 31, 2021, supervisory courts may review and re-open
    claims where exceptional circumstances are present:
J.W. v. Canada
    (Attorney General)
, 2019 SCC 19, [2019] 2 S.C.R. 224, at para. 27. The
    moving parties take the position that if Canada did breach the Disclosure
    Orders, dispositions and settlement agreements involving St. Annes IRS IAP claimants
    may need to be re-opened, and punitive and aggravated damages may be
    appropriate.
The disclosure
    issues in Metatawabin RFD #2
[14]

The first Disclosure Order at issue in
    Metatawabin RFD #2 was made by the EAJ on January 14, 2014. In it he ordered
    the production of documents relating to an extensive criminal investigation conducted
    by the Ontario Provincial Police into claims of abuse at St. Annes IRS. Canada
    was also ordered to comply with its disclosure obligations relating to other
    relevant, non-privileged documents, and to revise the Narrative and POI Reports
    for St. Annes IRS. This Order led to the disclosure of more than 12,000
    additional documents and to substantial revisions to the Narrative and to some POI
    Reports.
[15]

The second Disclosure Order at issue in
    Metatawabin RFD #2, dated June 23, 2015, was also made by the EAJ. That Order was
    obtained by approximately 50 St. Annes IRS IAP claimants who were dissatisfied
    with Canadas compliance with the January 14, 2014 Disclosure Order. The June 23,
    2015 Disclosure Order directed Canada to revise identified reports to include
    specified categories of information, and to make further particularized
    disclosure.
[16]

The parties disagree as to whether Canada has
    fully complied with the Disclosure Orders; the moving parties contend that Canada
    has not. One of their core complaints is that Canada failed to revise disclosure
    relating to claims that had already been resolved before the Disclosure Orders
    were issued, and that this resulted in unfair settlements affecting an
    estimated 166+ claimants.
[17]

Between 2015 and 2018, numerous RFDs were
    brought before the EAJ seeking further enforcement of the Disclosure Orders. The
    moving parties contend these RFDs were not heard on their merits because the
    EAJ always accepted Canadas preliminary objections. They emphasize that courts
    have a duty to ensure all IAP claimants receive the benefits they bargained for
    when they entered into the IRSSA and forfeited their right to sue, but argue
    that the EAJ has breached this obligation by failing to enforce these orders
    and to re-open claims for fair adjudication.
The EAJs recusal from Metatawabin RFD #2
[18]

Ms. Brunning, in her capacity as counsel
    participating in related proceedings, made critical comments about the EAJs
    response to attempts to enforce the Disclosure Orders. On January 15, 2018, the
    EAJ issued an order in which he criticized Ms. Brunnings conduct and ordered
    costs personally against her: 2018 ONSC 357. In February 2020, the Divisional
    Court set these orders aside, finding that the EAJ should have recused himself
    from making them: 2020 ONSC 1003 (Div. Ct.).
[19]

On May 12, 2020, the moving parties, with Ms.
    Brunning as one of their counsel, filed Metatawabin

RFD #2, once again seeking
    the enforcement of the Disclosure Orders, as well as additional incidental
    relief for individual claimants.
[20]

On June 5, 2020, the EAJ recused himself as Supervising
    Judge in Metatawabin RFD #2: 2020 ONSC 3497. By joint direction, the EAJ
    appointed the WAJ as Supervising Judge to hear Metatawabin RFD #2.
Rouleau J.A.s order dated November 2, 2020
[21]

On November 2, 2020, this court set aside the
    EAJs order appointing the WAJ as Supervising Judge for Metatawabin RFD #2.
    Rouleau J.A. held that para. 5(a) of the CAP required that RFDs involving
    strictly Ontario class members and Ontario institutions were to be directed to
    the Ontario Superior Court of Justice for hearing: 2020 ONCA 688, at para. 42.
    As a result, Rouleau J.A. set aside the EAJs order assigning Metatawabin RFD
    #2 to the WAJ and remitted the matter to the Ontario Superior Court of Justice
    for hearing. Further, Rouleau J.A. directed, at para. 66 of his reasons, that [a]s
    the Ontario Supervising Judge has recused himself, it is up to the Chief
    Justice of the Ontario Superior Court of Justice to assign a different
    Supervising Judge.
Glustein J.s appointment and management of
    Metatawabin RFD #2
[22]

On November 5, 2020, in a letter with the
    reference line RE:
Fontaine v. Canada (Attorney-General)
, the Chief
    Justice of the Ontario Superior Court of Justice appointed Glustein J. to act
    as Supervising Judge in this matter. Metatawabin RFD #2 is now proceeding
    before Glustein J. Canada has filed a motion to dismiss Metatawabin RFD #2,
    alleging abuse of process. Glustein J. has held multiple case conferences attended
    by Canada and the moving parties.
[23]

According to the moving parties, in one such
    conference on March 12, 2021, Glustein J. indicated he could deal with whether
    there was a breach of the Disclosure Orders without having to resolve certain
    outstanding factual issues relating to claimant representation. The moving
    parties say Glustein J. also advised Canada not to play a game of got you
    with the documents. As I understand the moving parties, they interpret the
    former comment as an indication that Glustein J. is poised to decide the
    disclosure issue on its merits, and the latter as a caution to Canada not to take
    a narrow view of its obligation to preserve documents, pending the decision on
    the merits in Metatawabin RFD #2.
Canadas RFD to appoint an ISA
[24]

On March 18, 2021, Canada filed an RFD requesting
    the appointment of an ISA to conduct an independent review of IAP claims
    brought by former students at St. Annes IRS. In this RFD, Canada submitted
    that, despite a success rate of 96.4% for St. Annes IRS IAP claimants,
    extensive negative publicity arising from the heavily litigated disclosure
    dispute is undermining public confidence in the integrity of the IRSSA and the IAP.
[25]

To address this, Canada requested an order that
    would allow for an independent investigation of certain St. Annes IRS IAP claims
    to determine in each case: (1) whether the 2014 disclosure was available in each
    claims adjudication, (2) if not, whether there was a conscious decision by
    counsel to proceed without disclosure, and (3) if not, whether the disclosure would
    have been reasonably likely to have impacted the amount of compensation awarded.
    The order Canada sought had provisions designed to maintain confidentiality and
    respect privacy and solicitor-client privilege.
The March 22, 2021 Assignment Order
[26]

On March 22, 2021, the EAJ and WAJ issued a joint
    direction assigning the EAJ as the Supervising Judge for Canadas RFD (the Assignment
    Order). The Assignment Order provided for the RFD to be heard in writing. It
    also directed court counsel to invite written submissions from,
inter

alia
,
the requestors in Metatawabin RFD #2 (the moving parties) by
    April 7, 2021.
[27]

On April 1, 2021 the moving parties filed a notice
    of appeal of the Assignment Order, seeking the dismissal of that Order and the
    confirmation of Glustein J. as the Ontario Supervising Judge for all RFD matters
    pertaining to St. Annes class members (Notice of Appeal #1).
[28]

The moving parties brought a concurrent motion
    to stay the Assignment Order pending appeal (Motion #1). They also sought a Preservation
    Order requiring Canada to preserve all documents pertaining to St. Annes IRS IAP
    claims. In addition, Motion #1 requested an order expediting the appeal, perhaps
    to be heard by the same panel that issued the November 2, 2020 Reasons and
    Order. This is the motion for which notice was given, and it was scheduled before
    me for an April 22, 2021 hearing.
The Order Under Appeal
[29]

On April 20, 2021, two days before Motion #1 was
    scheduled to be heard, the EAJ issued the Order Under Appeal, after having
    received written submissions from the Assembly of First Nations, as well as the
    IRSSAs Independent Counsel and the Chair of the National Administration
    Committee. The moving parties had also filed written submissions, under
    protest.
[30]

In the Order Under Appeal, the EAJ identified Canadas
    RFD request as urgent, given that the IRSSA was near completion and serious
    allegations have been made about the integrity of [the IAP] and about whether the
    claims of certain Claimants who attended [St. Annes IRS] were administered in
    accordance with the provisions of the IRSSA. He noted that the festering
    grievance [regarding the Disclosure Orders] risks undermining public confidence
    in the integrity of the IAP with respect to St. Annes claims.
[31]

The Order Under Appeal modified the terms of
    Canadas draft order to accommodate certain objections made before the EAJ. The
    EAJ appointed the Hon. Ian Pitfield as ISA to conduct the St. Annes Review.
    In doing so, the EAJ relied on his authority to appoint a referee pursuant to r.
    54 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
mutatis

mutandis
. Upon completion of the St. Annes Review, the EAJ ordered
    the ISA to deliver a sealed report of his findings to the court and Canada, but
    directed that Canada would not participate in the process except to facilitate the
    ISAs access to relevant records. At para. 10, the Order Under Appeal set the
    terms of the St. Annes Review as follows:
In the report, the ISA shall make an
    independent determination for each IAP Claimant whose IAP claim was resolved
    (whether by adjudication, settlement, negotiation, or withdrawal)
before
    additional disclosure was made available pursuant to the [Disclosure Orders]
and the ISA shall report to the court the answers to the following questions:
i.

Were the 2014/2015 disclosure documents
    available
for the claims adjudication?
ii.

If not,
could the 2014/2015 disclosure
and use of the documents for the IAP have materially affected the amount of
    compensation paid on the claim? and,
iii.

If
the disclosure
and use of the
    documents could have materially affected the amount of the compensation, what
    additional compensation should have been paid in accordance with the IRSSA?
    [Emphasis added.]
[32]

On April 22, 2021, the day of the motion hearing
    before me, the moving parties filed a notice of appeal of the Order Under
    Appeal (Notice of Appeal #2). In their Notice of Appeal #2, the moving
    parties seek to have the Order Under Appeal set aside, and reiterate their request
    that Glustein J. be confirmed as the Ontario Supervising Judge to determine
    all legal matters pertaining to the 166+ St. Annes IAP claimants whose rights
    are being determined in Metatawabin RFD #2.
The moving parties grounds of appeal
[33]

The grounds of appeal are set out at para. 20 of
    Notice of Appeal #2, but they are suffused with factual claims and argument in
    a repetitive list of points and subpoints. My understanding of the grounds of
    appeal being advanced by the moving parties can fairly be summarized as
    follows:
i.

The EAJ erred by not recusing himself from this
    matter because of reasonable apprehension of bias;
ii.

The EAJ erred by adjudicating Canadas RFD
    because Glustein J. was the Ontario Supervising Judge with sole authority to
    hear all St. Annes IRS IAP matters;
iii.

The EAJ breached rules of natural justice, as the
    Order Under Appeal was made without a public hearing, without evidence, and
    without the knowledge, input, and representation of the St. Annes IRS IAP claimants
    whose rights are affected;
iv.

It was an abuse of process for Canada to bring
    the RFD that led to the Order Under Appeal; and
v.

The Order Under Appeal is in breach of the CAP
    under the IRSSA.
[34]

On April 21, 2021, the moving parties filed a
    Supplementary Notice of Motion as a companion to Motion #1 (Motion #2).
    In Motion #2, the moving parties seek an order staying the Order Under Appeal
    pending their appeal.
THE ISSUES
[35]

Canada has been pragmatic in allowing the
    matters before me to move forward. They took no objection to the late service
    of Motion #2, nor to the fact that Motion #2 was being heard prior to Notice of
    Appeal #2 having been officially filed.
[36]

I will therefore consider the relief requested
    under Motion #1 and Motion #2, subject to two exceptions. First, I will not
    consider the request made in Motion #1 to stay the Assignment Order. During the
    oral hearing before me, the moving parties conceded that this request is now
    moot. Second, in Motion #1 the moving parties asked for an order expediting the
    appeal. No submissions were made in support of that request during the hearing,
    so I will not consider it here.
[37]

There are therefore two issues before me:
(a)   Should the Order Under Appeal, dated April 20, 2021, be stayed
    pending appeal?
(b)   Should a preservation order be issued?
ANALYSIS
A.      THE ORDER
    UNDER APPEAL SHOULD NOT BE STAYED
[38]

The overarching consideration on a motion for a stay
    pending appeal is whether a stay is in the interests of justice
: BTR Global
    Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust,
2011 ONCA
    620, 283 O.A.C. 321, at para. 16;
2257573 Ontario Inc. v. Furney
, 2020
    ONCA 742, at para. 20. This determination is informed by the three factors
    described in
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994]
    1 S.C.R. 311, at p. 334:
(1)     A preliminary assessment must be made of the merits of the
    case to ensure there is a serious question to be determined on the appeal;
(2)     It must be determined whether the moving party would suffer
    irreparable harm if the stay were refused; and
(3)     An assessment must be made as to which of the parties would
    suffer greater harm from the granting or refusal of the stay pending a decision
    on the merits.
[39]

As Laskin J.A. noted in
Circuit World Corp.
    v. Lesperance

(1997), 33 O.R. (3d) 674, at p. 677, these three
    criteria are not watertight compartments and the strength of one may
    compensate for the weakness of another.
[40]

I have undertaken this assessment. As I will
    explain, I am not satisfied that it is in the interests of justice to stay the Order
    Under Appeal.
(1)

A Serious Issue to be Determined on Appeal
[41]

I recognize that the serious issue threshold is
    low and will be satisfied if an appeal is neither frivolous nor vexatious:
Furney
,
    at para. 22. However, my preliminary assessment is that the grounds of appeal
    raised in respect of the Order Under Appeal are likely frivolous for
    jurisdictional reasons. I say this based on my preliminary view that the appeal
    probably should have been brought before the Divisional Court. This militates
    against the seriousness of the issues to be determined, as the absence of
    jurisdiction would mean the appeal is devoid of merit and therefore
    frivolous:
Heidari v. Naghshbandi
, 2020 ONCA 757, 153 O.R. (3d) 756,
    at para. 10;
Henderson v. Henderson
, 2014 ONCA 571, 324 O.A.C. 138, at
    para. 8.
The potential jurisdictional problem
[42]

Pursuant to s. 6(1)(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 (the
CJA
), an appeal lies to
    this court from a final order of the Superior Court of Justice. Speaking
    generally, if an order is interlocutory, rather than final, this court lacks jurisdiction
    to hear an appeal from that order.
[43]

As Sharpe J.A. observed in
Fontaine v.
    Canada (Attorney General)
, 2018 ONCA 749, at para. 5, a single judge of
    this court has no final authority to determine the issue of jurisdiction.
    However, Sharpe J.A. went on to explain that no stay should be granted in a
    case over which this court lacks jurisdiction, so if a jurisdictional issue arises
    on a stay motion it should be considered. Likewise, in
Fontaine v. Canada
    (Attorney General)
, 2020 CanLII 64770 (Ont. C.A.) (
Fontaine Stay #2
),
    Simmons J.A. held, at para. 14, that a single judge on a stay motion should
    assess whether the order under appeal is interlocutory, or even probably
    interlocutory since such a finding would militate against granting the
    requested stay: see also,
Belton v. Spencer
, 2020 ONCA 623, 58 C.P.C.
    (8th) 16, at paras. 41 and 50.
[44]

Based on my preliminary assessment below, the Order
    Under Appeal is probably interlocutory. As such, I conclude that the serious
    question factor militates against granting the requested stay.
Jurisdiction probably does not arise from
    the recusal appeal
[45]

The moving parties rest their claim that the Order
    Under Appeal is a final order primarily on their position that the EAJs
    failure to recuse himself is a final determination of a substantive issue. In
    support of this submission, they seek to draw an analogy to their successful appeal
    of the EAJs order of June 5, 2020 in which the EAJ purported to assign
    Metatawabin RFD #2 to the WAJ in British Columbia. After rejecting Canadas
    submission that this order was interlocutory, Simmons J.A. issued a stay pending
    appeal of that order and this court ultimately heard the appeal. Simmons J.A. acknowledged
    that it was not her role as a single judge of this court to determine whether
    the court had jurisdiction to entertain the appeal, but reasoned that the June
    5, 2020 order was final because it finally determines a substantive matter
    the [moving parties] entitlement to have [Metatawabin RFD #2] heard in the
    forum they say is prescribed by the CAP:
Fontaine Stay #2
, at para.
    16.
[46]

In my view, the moving parties analogy to
Fontaine
    Stay #2
is inapt. A panel of this court has already determined, in related
    proceedings, that a judges refusal to recuse themselves is an interlocutory
    matter:
Brunning v. Fontaine
, 2019 ONCA 98, 144 O.R. (3d) 410, at
    paras. 6-11; see also,
Beaver v. Hill
, 2019 ONCA 520, at paras. 14-15.
    These cases support my preliminary view that the EAJs failure to recuse
    himself from hearing Canadas RFD is probably an interlocutory decision
    appealable only with leave to the Divisional Court. However, a preliminary
    assessment of whether jurisdiction is likely to arise from other aspects of the
    Order Under Appeal requires further analysis.
Jurisdiction probably does not arise under
    the traditional
Hendrickson

test
[47]

This court recently affirmed in
Drywall Acoustic
    Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc.
, 2020
    ONCA 375, at para. 16, that the test in
Hendrickson v. Kallio
, [1932]
    O.R. 675 (C.A.), at p. 678, continues to govern in deciding whether an order is
    final or interlocutory. That test is as follows:
The interlocutory order from which there is no
    appeal is an order which does not determine the real matter in dispute between
    the parties  the very subject matter of the litigation, but only some matter
    collateral. It may be final in the sense that it determines the very question
    raised by the application, but it is interlocutory if the merits of the case
    remain to be determined.
[48]

As
Hendrickson

teaches, the mere
    fact that the Order Under Appeal appears to have finally resolved the
    appointment of an ISA and the terms of the St. Annes Review does not make the
    order a final one. MacFarland J.A. confirmed this point in
Waldman v.
    Thomson Reuters Canada Limited
, 2015 ONCA 53, 330 O.A.C. 142, at para. 22,
    noting that if an order were deemed final simply because it disposed finally of
    whatever issue was before the court, the distinction between interlocutory and
    final orders would cease to exist.
[49]

The material question is whether the Order Under
    Appeal finally resolved the real matter in dispute between the parties, meaning
    the very subject matter of the litigation. The real matter in dispute between
    the parties is whether Canada breached the disclosure obligations it owes to
    St. Annes IRS claimants under the IAP. In my view, the Order Under Appeal does
    not resolve that dispute. At most, it provides a procedure for making future
    findings that may bear indirectly upon that dispute. I will explain.
[50]

The EAJ did not make any findings of fact
    relating to disclosure in the Order Under Appeal. Instead, he appointed the ISA
    as a referee in accordance with Rule 54 of the
Rules of Civil Procedure

mutatis

mutandis
 who shall make a report that
    contains his or her findings, conclusions and recommendations.
[51]

Of importance, any reported findings,
    conclusions, or recommendations of a referee under r. 54 have no legal effect
    unless the report is confirmed by the directing judge after a confirmation hearing
    on notice to the parties: rr. 54.07-54.08. Therefore, if the ISAs ultimate findings
    do resolve substantive issues between the parties, those findings would not
    arise from the Order Under Appeal, but instead from the ISAs report, which is
    not yet in existence and which may or may not be confirmed by the EAJ.
[52]

Moreover, pursuant to r. 54.05, the moving
    parties are entitled to challenge the progress of the ISA before he produces
    his report. Further, pursuant to rr. 54.07-54.08, they will be free to oppose any
    findings the ISA eventually makes before those findings have legal effect.
[53]

Not surprisingly,
in Webb v. 3584747 Canada
    Inc.
(2002), 161 O.A.C. 244, (Div. Ct.), a judges order appointing a
    referee pursuant to r. 54 to determine the claims of certain class members in a
    class action was characterized as interlocutory: at para. 1.
[54]

In light of the foregoing, I think that
    jurisdiction probably does not arise in this case under the traditional
Hendrickson
test.
Jurisdiction probably
    does not arise even under a modified approach
[55]

For the sake of completeness, I will consider this
    courts decision in
Parsons v. Ontario
, 2015 ONCA 158, 125 O.R. (3d)
    168, revd on other grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. In
Parsons
,
    at para. 44, LaForme J.A. (for the majority) took a somewhat modified
    approach in distinguishing between final and interlocutory orders within a
    national class action where the substantive merits and defences had already
    been determined by a judicially-approved settlement agreement.
[56]

Applying this somewhat modified approach,
    LaForme J.A. characterized as final an order determining that supervisory
    judges from different provinces could sit together to hear concurrent motions
    for a proposed protocol extending the first claims deadline in the settlement agreement.
    LaForme J.A. found that the essential character of the RFD leading to the
    order was akin to an application to interpret a statute or contract under r.
    14.05(3)(d). By analogy, LaForme J.A. held that the order was therefore final
    rather than interlocutory.
[57]

Juriansz J.A. issued a strong dissent. He
    rejected the modified approach endorsed by LaForme J.A., saying it would be confusing.
    In Juriansz J.A.s view, even where substantive rights have already been
    settled in a class action and no claims or defences remain to be tried, the traditional
Hendrickson

test should still be applied:
Parsons
, at
    para. 208. For Juriansz J.A., the real issue in dispute was whether the court
    should extend the deadline for filing first claims. He concluded that this issue
    was not finally resolved by determining the forum in which the court could hear
    the underlying motion. Therefore, according to Juriansz J.A., the order under
    appeal was interlocutory and this court did not have jurisdiction.
[58]

I need not resolve whether the approach taken by
    LaForme J.A. is appropriate because applying that approach would not alter my preliminary
    assessment of the Order Under Appeal. Of importance, in
Parsons
, at
    para. 53, LaForme J.A. cautioned that not all appeals from orders of
    supervisory judges under a national class action settlement agreement are
    final. The proper characterization will turn on the specific order under appeal.
[59]

In my view, even applying LaForme J.A.s
    somewhat modified approach, the Order Under Appeal is probably interlocutory. Assuming,
    without deciding, that Canadas RFD may be characterized as analogous to an
    application under r. 14.05, the Order Under Appeal is distinguishable from the
    order in
Parsons
in at least two material ways
.
[60]

First, the Order Under Appeal did not determine
    the forum in which any substantive issues between Canada and the moving parties
    would be resolved. The substantive disclosure issues between the parties are
    being litigated in Metatawabin RFD #2 before Glustein J. The Order Under Appeal
    does nothing to prevent that litigation from continuing.
[61]

Second, the Order Under Appeal is based on r. 54,
    providing a statutory basis on which the moving parties may challenge the St.
    Annes Review as it progresses, and oppose the ISAs substantive findings,
    conclusions, and recommendations at a future hearing before they take effect.
[62]

In my view, even using the somewhat modified
    approach that LaForme J.A. applied in
Parsons
, there is nothing about
    the Order Under Appeal that could support the conclusion that it is a final
    order.
Conclusion on the seriousness of the issue to be
    determined on appeal
[63]

In my preliminary view, the Order Under Appeal
    is probably interlocutory. If I am correct, this would make the moving parties
    appeal filed in this court meritless:
Henderson
,
at para. 8. Regardless
    of the substantive merits of the grounds of appeal advanced by the moving
    parties, this probable absence of jurisdiction undermines the seriousness of
    the issues to be determined. As such, I find that the first
RJR-MacDonald

factor militates against granting the stay.
[64]

However, even if I am wrong and the Order Under
    Appeal is final such that there are viable serious issues to be determined on
    appeal, this alone would not entitle the moving parties to a stay pending
    appeal. They must ultimately persuade me that a stay is in the interests of
    justice by showing they will suffer irreparable harm if a stay is not granted
    and that the balance of convenience weighs in their favour.
[65]

As I will explain, I am not persuaded that the
    remaining
RJR-MacDonald

factors favour granting the requested
    stay pending appeal.
(2)

Irreparable Harm
[66]

When framed properly, irreparable harm arguments
    should focus on the adverse effects that are likely to arise if the order under
    appeal is not stayed pending appeal:
Ducharme v. Hudson
, 2021 ONCA
    151, at para. 20. Many of the moving parties irreparable harm arguments focused
    instead on allegations about the harm caused by the Order Under Appeal itself,
    including that it was obtained through an unfair process from a judge who did not
    properly enforce the Disclosure Orders. I will not consider those submissions
    further.
[67]

Only three of the submissions made before me relate
    to harm that could be caused by failing to stay the Order Under Appeal pending
    appeal:
(i)      The St. Annes Review could produce results that are
    inconsistent with the ultimate resolution of Metatawabin RFD #2;
(ii)      Access to justice will be denied to the St. Annes IRS IAP
    claimants potentially affected by Metatawabin RFD #2; and
(iii)     The St. Annes Review will create duplicative costs.
[68]

I will address each submission in turn.
(i) Inconsistent findings will not result from the Order
    Under Appeal
[69]

Without question, the risk of inconsistent
    findings or results from parallel proceedings can cause irreparable harm to
    parties and to the administration of justice:
Fontaine v. Canada (Attorney
    General)
, 2018 ONCA 832, at para. 15.
[70]

However, in my view, there is no realistic risk
    of inconsistent findings between Metatawabin RFD #2 and the Order Under Appeal.
    As I have explained, no findings were made in the Order Under Appeal relating
    to disclosure. The risk of inconsistent findings would arise, if at all, from
    the ISAs report, which may or may not take legal effect if confirmed at some
    later date. In other words, at this stage, an assessment of whether
    inconsistent legal determinations might arise from the St. Annes Review would
    be purely speculative.
[71]

Indeed, there is no evidence before me indicating
    a realistic risk that the ISA himself could make findings that are inconsistent
    with those that may be made in Metatawabin RFD #2. Metatawabin RFD #2 is
    concerned with whether Canada breached the Disclosure Orders. Its focus is on
    the disclosure that
has not been made
, and whether Canada failed to
    revise POI Reports contrary to the Disclosure Orders
after
those Disclosure
    Orders were issued in 2014-2015. As revealed in the terms of the St. Annes
    Review set out at para. 10 of the Order Under Appeal, reproduced at para. 31 above,
    the ISAs mandate is to consider whether the disclosure that
has been made
pursuant to the Disclosure Orders was available during IAP claim adjudications
    that occurred
before
the Disclosure Orders were issued in 2014-2015.
(ii) Access to
    justice will not be denied to the St. Annes IRS IAP claimants
[72]

In the Assignment Order, the EAJ was assigned to
    decide Canadas RFD requesting the appointment of an ISA. In support of their
    motion to stay the Assignment Order, the moving parties argued that unless that
    Order was stayed pending appeal, thereby preventing the EAJ from deciding
    Canadas RFD, access to justice for the 166+ St. Annes Claimants, in the [Metatawabin
    RFD #2] proceedings before Glustein J., will be denied.
[73]

This irreparable harm argument is obviously
    linked to the moving parties contention in their Notice of Appeal #1 that
    Canadas RFD was brought to frustrate the Metatawabin RFD #2 hearing that is
    currently underway before Glustein J. Assuming the moving parties rely on this
    argument in support of Motion #2, I do not accept it.
[74]

The Order Under Appeal does not purport to stay
    or adjourn the Metatawabin RFD #2 hearing, nor does it purport to direct anyone
    to discontinue those proceedings. Nor, for the reasons I have given, does the
    Order Under Appeal present a realistic risk of inconsistent findings that could
    compromise the ultimate decision on the merits in Metatawabin RFD #2. Finally,
    the Order Under Appeal does not appear to jeopardize any benefits that may be obtained
    by the moving parties in Metatawabin RFD #2.
[75]

To the contrary, the ISAs mandate is to
    determine whether additional compensation should have been paid to certain St.
    Annes IRS IAP claimants. Although the Order Under Appeal does not provide a
    specific mechanism for rectifying underpayment, it is evident that the Order could
    lead to additional payments being made to certain St. Annes claimants.  It is
    difficult to characterize the possibility of additional compensation to
    claimants as irreparable harm.
(iii) There is no
    risk of duplicative costs
[76]

Since the Order Under Appeal does not address
    the same issues as Metatawabin RFD #2, any costs that IAP claimants may incur
    in relation to the St. Annes Review would not be duplicative.
Conclusion on
    irreparable harm
[77]

Accordingly, the moving parties have not
    satisfied me that irremediable harm will arise if the Order Under Appeal is not
    stayed.
(3)

The Balance of Convenience
[78]

I have identified no irreparable harm to the
    moving parties. Nor has any other harm been demonstrated that could support
    their view that the balance of convenience favours granting a stay pending
    appeal.
[79]

In contrast, in my view there is a risk of harm
    to Canada if a stay is ordered. The St. Annes Review would be delayed,
    postponing Canadas ambition to reinforce public confidence in the IRSSA by
    obtaining a full and timely claims review. However, I am not persuaded that
    this risk is pressing because the unfairness concerns underlying the St. Annes
    Review are not apt to be answered until all related proceedings, including Metatawabin
    RFD #2 and the appeal in this matter, are concluded.
[80]

Suffice it to say that, in my view, the balance
    of convenience does not favour a stay pending appeal.
(4)

Conclusion on the Stay Motion
[81]

Given the probable jurisdictional issues I have
    identified, in my view there is no serious issue to be determined on appeal to
    this court. Even if there were, I have not found any irreparable harm if a stay
    pending appeal is not ordered, and the balance of convenience does not favour a
    stay.
[82]

Accordingly, I conclude it is not in the
    interests of justice to stay the Order Under Appeal.
B.      A
    PRESERVATION ORDER IS NOT WARRANTED
[83]

The Order Under Appeal does not address the
    preservation of documents, nor does the Assignment Order. There is therefore no
    issue being appealed that relates directly to the preservation of documents. The
    moving parties nonetheless request that I make a preservation order. The scope
    of the relief sought is set out in a draft order filed with Motion #1. If granted,
    in addition to incidental relief, that order would require Canada to preserve
    the following:
Every document  that [is] or [has] been in
    the possession of government officials, which document in any way pertains to
    St. Annes IAP claims adjudicated under the IRSSA and/or to Requests for
    Directions and/or civil actions related thereto, unless and until further Order
    of the Ontario Superior Court of Justice.
[84]

The moving parties cite no authority to support
    the preservation order they request. The Crown contends that I have no
    jurisdiction to make that order. I do not entirely agree. Section 134(2) of the
CJA
authorizes a single judge of this court to make any interim
    order considered just to prevent prejudice to a party pending appeal:
Sub-Prime
    Mortgage Corporation v. Kaweesa
, 2021 ONCA 215, at paras. 44-46. The moving
    parties are concerned with the prejudice that could arise if documents required
    to pursue re-opened IAP claims are destroyed before those claims are re-opened.
    The focus of their concern is a sunset order that was issued on May 29, 2020 permitting
    Canada to destroy documents in anticipation of the March 31, 2021 deadline for the
    IAP to cease operations (the Sunset Order). The documents were to be destroyed
    to protect the privacy of IAP claimants.
[85]

In response to a separate motion brought by the
    moving parties, on February 3, 2021 the WAJ varied the Sunset Order to require
    Canada to preserve documentation relating to St. Annes IRS IAP claims (the
    Sunset Variation Order). The moving parties contend that the Sunset Variation
    Order does not cover all the documents that may be relevant to St. Annes IRS IAP
    claims implicated in Metatawabin RFD #2. They argue that the preservation order
    they seek is urgently required to prevent the litigation related to this appeal
    from being undermined by the destruction of documents.
[86]

Although I do have jurisdiction to make the
    requested interim preservation order pursuant to
CJA

s. 134(2),
    in my view it is not in the interests of justice to do so.
[87]

First, I have concerns about judge shopping and
    duplicative proceedings. The moving parties have not appealed the WAJs Sunset
    Variation Order. On March 18, 2021, the moving parties amended Metatawabin RFD
    #2 to include a request for an order directing Canada not to destroy any IAP
    documents. Therefore, that issue is now before Glustein J. This reduces any
    potential urgency or risk of irreparable harm that may have militated in favour
    of granting the requested preservation order in the interests of justice.
[88]

Second, this requested relief engages complex
    issues relating to the risks associated with preserving highly confidential
    documents. I am not satisfied that all considerations that should bear on the
    preservation order sought by the moving parties were fully argued before me.
[89]

Third, I am not satisfied that the preservation order
    is necessary to prevent prejudice to the moving parties in the context of their
    appeal. On March 23, 2021, Canada advised that it would seek an order
    permitting it to preserve all St. Annes IRS documents pending the completion
    of the St. Annes Review if court counsel, Mr. Gover, instructed Canada to do
    so. Canada also undertook to preserve those documents from destruction until
    the RFD is returned. The next day, Mr. Gover advised the parties that Canadas
    undertaking was satisfactory to the Courts and no formal order was necessary.
    Even though Canadas RFD has already been returned and the Order Under Appeal has
    been rendered, counsel for Canada affirmed before me that Canadas undertaking
    to the Ontario Superior Court of Justice was deemed sufficient for the purpose
    of preserving the documents pending the outcome of these matters.
[90]

It is therefore not in the interests of justice
    for me to make the interim preservation order requested by the moving parties.
DISPOSITION
[91]

The motions for a stay pending appeal of the
    Order Under Appeal and for an interim preservation order are dismissed.
[92]

If Canada, the responding party, wishes to pursue
    a costs order, it may provide submissions in writing, not to exceed 3 pages,
    accompanied by a bill of costs within 10 court days of the receipt of this
    decision. The moving parties may respond and make costs submissions in writing,
    not to exceed 3 pages, accompanied by a bill of costs, within 5 court days of
    being served with Canadas costs materials.
David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA 66

DATE: 20210129

DOCKET: C68407

Fairburn A.C.J.O., Rouleau and Miller 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
    (Appellants)

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. Francois
    dAssise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de
    Saint-Hyancithe, Les Soeurs de Jésus-Marie, Les Soeurs de lAssomption de la
    Sainte Vierge, Les Soeurs de lAssomption de la Saint Vierge de lAlberta, Les
    Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de lOntario, Les
    Résidences Oblates du Québec, La Corporation Episcopale 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 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 Soeurs 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
    (
Respondent
)

Fay K. Brunning and Michael Swinwood, for the appellants
    Edmund Metatawabin, St. Annes IAP Claimant T-00185, St. Annes IAP Claimant
    S-20774, and St. Annes IAP Claimant S-16753

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

Stuart Wuttke, for the respondent Assembly First Nations

David Schulze, for the respondent Independent Counsel

Evatt Merchant, for the respondent Merchant Law Group

Estée Garfin, for the intervener Attorney General of
    Ontario

Heard: September 21, 2020 by video conference

On appeal from the order of Justice Paul M. Perell of the
    Ontario Superior Court of Justice, dated June 5, 2020, with reasons reported at
    2020 ONSC 3497.

COSTS
    ENDORSEMENT

[1]

Four participants in this appeal seek nearly $190,000 in costs. The
    respondent, the Attorney General of Canada (Canada), has already agreed to
    pay $53,543.53 in costs to the appellants but opposes the costs requested by the
    three other participants, that is: the Assembly of First Nations request for
    $10,550; the Merchant Law Groups request for $70,818.89; and the request of
    Independent Counsel for $54,542.50. These three additional participants seek
    costs on a full indemnity basis.

[2]

Canada maintains that, unlike the appellants, these three other
    participants were not directly impacted by the order under appeal and neither
    Independent Counsel nor the Merchant Law Group represents a discernible client
    interest. Further, Canada argues that the issue on appeal was a straightforward
    interpretative issue. The arguments of the three requesting parties
    submissions on the appeal were unnecessarily duplicative and were largely
    covered by the appellants. Therefore, Canada indicates that this is not an
    appropriate case to award costs to the three other participants.

[3]

The three requesting parties argue that costs should follow the result.
    They maintain that they raised arguments on which the court ultimately relied
    in allowing the appeal. They submit that the issues were complex and of
    national significance and the amounts they request are reasonable and
    proportionate in the circumstances.

[4]

In our view, it is appropriate that the three requesting parties be
    awarded costs. They were entitled to participate in support of the appellants
    and, in that sense, were successful parties on appeal. However, we consider the
    amount sought to be excessive in the circumstances. While the issues raised on
    the appeal were not simple, they were nonetheless straightforward issues of
    interpretation.

[5]

While we do not question the time each of the three additional participants
    devoted to this matter, it is clear to us that much of the work carried out by
    the requesting parties was duplicative of the work done by the appellants and
    by each other. We see little purpose in carrying out a line by line analysis of
    each of the bill of costs with a view to identifying and eliminating selected
    entries.

[6]

In our view, it is unreasonable to require Canada to reimburse each of
    the participants on a full indemnity basis for all of the time being claimed. We
    consider the amount sought by the Assembly of First Nations to be generally
    reasonable, and we award it $10,000 in costs. The amount sought by the Merchant
    Law Group is, however, excessive in the circumstances, and we award it $20,000
    in costs. The amount sought by Independent Counsel is considerably less than
    the amount sought by the Merchant Law Group, but we nonetheless consider it
    excessive in the circumstances. We note that Independent Counsel participated
    and made submissions on the stay motion and, as a result, should be awarded an
    amount somewhat higher than the amount awarded to the Merchant Law Group. We
    therefore award Independent Counsel $27,000 in costs.

[7]

All amounts are inclusive of applicable taxes and disbursements.

Fairburn A.C.J.O.

Paul Rouleau J.A.

B.W. Miller J.A.