Fontaine et al. v. Canada (Attorney General) et al., (2014) 311 Man.R.(2d) 15 (QB)

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 09, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 311 Man.R.(2d) 15 (QB);2014 MBQB 200;311 Man R (2d) 15

Fontaine v. Can. (A.G.) (2014), 311 Man.R.(2d) 15 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. OC.018

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) v. 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 Women's 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 Qu'Appelle, The Synod of the Diocese of New Westminister, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women's Missionary Society of the United Church of Canada, Sisters of Charity, A Body Corporate Also Known as Sisters of Charity of St. Vincent de Paul, Halifax, Also Known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. Francois D'Assise, Insitut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jesus-Marie, Les Soeurs de L'Assomption de la Sainte Vierge, Les Soeurs de L'Assomption de la Saint Vierge de L'Alberta, Les Soeurs de la Charite de St.-Hyacinthe, Les Oeuvres Oblates de L'Ontario, Les Residences Oblates du Quebec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Soeurs Grises de 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 D'Hudson - The Roman Catholic Episcopal Corporation of Hudson's Bay, Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculee 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. Peter's Province, The Sisters of Saint Ann, Sisters of Instruction of The Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Peres 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 Archiépiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Episcopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopale Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Epis Copal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc. (defendants)

(CI 14-01-00004; 2014 MBQB 200)

Indexed As: Fontaine et al. v. Canada (Attorney General) et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

October 9, 2014.

Summary:

E.B. received a common experience payment under the Indian Residential Schools Settlement Agreement (the agreement) for the intangible harm she endured while she was a student at Norway House. However, her application under the individual assessment process (IAP) for compensation for sexual abuse was denied on the basis that she was an employee, rather than a student, of Norway House when the incident occurred. A review adjudicator reversed that decision, awarding E.B. compensation of $98,074. A re-review decision was conducted by the chief adjudicator, who determined that E.B. was not eligible for compensation under the IAP. The parties made a request for direction from the supervising judge. At issue was whether an employee could be considered a "resident" for the purposes of the IAP.

The Manitoba Court of Queen's Bench held that, in the context of this case, the factual record clearly demonstrated that E.B. satisfied the requirements of being a "resident". The conclusion that E.B. was not a "resident" was not one of the range of possible interpretations available. The chief adjudicator's decision was unreasonable. The review adjudicator's award of damages was restored.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Contracts - Topic 7401

Interpretation - General principles - Intention of parties (incl. reasonable interpretation) - [See Indians, Inuit and Métis - Topic 4805 ].

Indians, Inuit and Métis - Topic 4805

Indian Residential Schools Settlement Agreement - Interpretation - E.B. received a common experience payment under the Indian Residential Schools Settlement Agreement (the agreement) for the intangible harm she endured while she was a student at Norway House - However, her application under the individual assessment process (IAP) for compensation for sexual abuse was denied on the basis that she was an employee, rather than a student, of Norway House when the incident occurred - At issue was whether an employee could be considered a "resident" for the purposes of the IAP - The Manitoba Court of Queen's Bench held that, in the context of this case, the factual record clearly demonstrated that E.B. satisfied the requirements of being a "resident" - The conclusion that E.B. was not a "resident" was not one of the range of possible interpretations available - The chief adjudicator's decision was unreasonable - "Resident" was a broad term that required limitation to avoid exposing Canada to liabilities that it did not agree to pay - Those limits could be found within the agreement itself - The parties' intention in entering into the agreement was to provide redress for those who had suffered harm in the residential school system - E.B. had remained at the school as an employee because her father was unable to care for her - The school officials were acting in loco parentis - E.B. was not a student, but the school had taken responsibility for her as a charge and not just as an employee - This established that, although E.B. was an employee, she was also a resident - See paragraphs 57 to 66.

Indians, Inuit and Métis - Topic 4806

Indian Residential Schools Settlement Agreement - Request for direction from the supervising judge - E.B. received a common experience payment under the Indian Residential Schools Settlement Agreement (the agreement) for the intangible harm she endured while she was a student at Norway House - However, her application under the individual assessment process (IAP) for compensation for sexual abuse was denied on the basis that she was an employee, rather than a student, of Norway House when the incident occurred - At issue on this request for direction from the supervising judge was whether an employee could be considered a "resident" for the purposes of the IAP - As a preliminary matter, the Crown asserted that the issue was not properly before the court because the IAP process did not provide for an appeal from the chief adjudicator's decision to the courts - Further, the Crown claimed that this was an improper attempt to amend the agreement by expanding the categories of claimants - The Manitoba Court of Queen's Bench held that it had jurisdiction to consider the issue - The case raised a question of interpretation of the utmost importance - Conflicting decisions by IAP adjudicators demonstrated the need for the court's assistance - Nor was this an attempt to amend the agreement - The question was the proper interpretation of "resident" and "school activities" - If the proper interpretation of those words included employees in some instances, that was a function of interpretation, not amendment - See paragraphs 50 to 53.

Indians, Inuit and Métis - Topic 4806

Indian Residential Schools Settlement Agreement - Request for direction from the supervising judge - E.B. received a common experience payment under the Indian Residential Schools Settlement Agreement (the agreement) for the intangible harm she endured while she was a student at Norway House - However, her application under the individual assessment process (IAP) for compensation for sexual abuse was denied on the basis that she was an employee, rather than a student, of Norway House when the incident occurred - At issue on this request for direction from the supervising judge was whether an employee could be considered a "resident" for the purposes of the IAP - The Manitoba Court of Queen's Bench determined that the standard of review of the chief adjudicator's decision that E.B. was not entitled to compensation under the IAP was reasonableness - This was not an appeal or a traditional judicial review application, but was rather a mechanism to ensure that the terms of the agreement were properly implemented - The issue was primarily one of contractual interpretation - Given the chief adjudicator's expertise in administering claims under the agreement and the limits placed on the scope of judicial oversight, the appropriate standard of review was reasonableness - See paragraphs 54 to 56.

Practice - Topic 9864

Settlements - Interpretation - [See Indians, Inuit and Métis - Topic 4805 ].

Words and Phrases

Resident - The Manitoba Court of Queen's Bench discussed the meaning of the word "resident" as found in the Indian Residential Schools Settlement Agreement - See paragraphs 57 to 66.

Cases Noticed:

Fontaine et al. v. Canada (Attorney General) et al. (2012), 295 O.A.C. 127; 2012 ONCA 471, refd to. [para. 50].

Fontaine v. Duboff Edwards Haight & Schachter - see Fontaine et al. v. Canada (Attorney General) et al.

Creston Moly Corp. v. Sattva Capital Corp. (2014), 358 B.C.A.C. 1; 614 W.A.C. 1; 461 N.R. 335; 2014 SCC 53, refd to. [para. 55].

Thomson v. Minister of National Revenue, [1946] S.C.R. 209, refd to. [para. 59].

Yue, Re (1991), 50 F.T.R. 78 (T.D.), refd to. [para. 59].

Smith v. Levy (1985), 69 N.S.R.(2d) 124; 163 A.P.R. 124 (T.D.), refd to. [para. 59].

Counsel:

Wayne M. Onchulenko, for the claimant, E.B.;

Leona Tesar, for the respondent, The Attorney General of Canada.

This request for direction was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following direction on October 9, 2014.