Fontaine et al. v. Canada (Attorney General) et al., 2012 ONCA 471

• Judge: Rosenberg, Juriansz and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 31, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 471;(2012), 295 O.A.C. 127 (CA)

Fontaine v. Can. (A.G.) (2012), 295 O.A.C. 127 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.027

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. Duboff Edwards Haight & Schachter (appellant) 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 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 Athbasca, The Synod of The Diocese of Brandon, The Anglican Synod of The Diocese of British Columbia, The Synod of The Diocese of Calgary, The Synod of The Diocese of Keewatin, The Synod of The Diocese of 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, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc. (defendants/respondents)

(C53526; 2012 ONCA 471)

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

Ontario Court of Appeal

Rosenberg, Juriansz and Rouleau, JJ.A.

July 4, 2012.

Summary:

The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding. The IRSSA provided two mechanisms through which class members could obtain compensation: (1) the Common Experience Payment (CEP), which was available to all eligible class members who resided at a residential school; and (2) the Independent Assessment Process (IAP), which was available to those claimants who established that they suffered serious physical or sexual abuse, or psychological harm at a residential school. Most claimants under the IAP retained counsel to represent them. Under the terms of the IRSSA, Canada agreed to contribute an amount up to 15% of the compensation awarded to the claimant for legal fees. DEHS represented claimants under the IAP. In July 2006, DEHS entered into a contingency fee agreement with one of its IAP clients for 30% of any compensation awarded. An adjudicator undertook a legal fee review hearing. The Adjudicator adjusted DEHS' proposed fee, reducing the 30% contingency fee to 20% (15% to be paid by Canada, 5% to be paid by the client). DEHS appealed to the Chief Adjudicator. The Chief Adjudicator dismissed the appeal. DEHS applied for judicial review. An Administrative Judge dismissed the application. DEHS appealed. The Chief Adjudicator moved to quash the appeal.

The Ontario Court of Appeal dismissed the motion and the appeal.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingency fee - Review and approval - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The IRSSA provided two mechanisms through which class members could obtain compensation: (1) the Common Experience Payment (CEP), which was available to all eligible class members who resided at a residential school; and (2) the Independent Assessment Process (IAP), which was available to those claimants who established that they suffered serious physical or sexual abuse, or psychological harm at a residential school - Most claimants under the IAP retained counsel to represent them - Under the terms of the IRSSA, Canada agreed to contribute an amount up to 15% of the compensation awarded to the claimant for legal fees - DEHS represented claimants under the IAP - In July 2006, DEHS entered into a contingency fee agreement with one of its IAP clients for 30% of any compensation awarded - An adjudicator undertook a legal fee review hearing - The Adjudicator adjusted DEHS' proposed fee, reducing the 30% contingency fee to 20% (15% to be paid by Canada, 5% to be paid by the client) - DEHS appealed to the Chief Adjudicator - The Chief Adjudicator dismissed the appeal - DEHS applied for judicial review - An Administrative Judge dismissed the application - DEHS appealed, asserting that it entered into a contingency fee agreement with its client, who was a resident of Manitoba, and that their agreement was governed by ss. 55(5) and 55(7) of Manitoba's Legal Profession Act - The Adjudicator ought to have considered these statutory provisions - The Ontario Court of Appeal dismissed the appeal - DEHS' position misconceived the effect of the IRSSA and the implementation orders - In initiating a review of the fairness and reasonableness of the legal fees charged by the appellant, the Adjudicator was acting in accordance with the terms of the implementation orders, rather than outside of the terms of those orders - The Administrative Judge did not err in refusing DEHS' request for a specific direction that the fee review process had to be conducted having regard to the particular laws of the province or territory in which the adjudication took place - See paragraphs 61 to 65.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingency fee - Review and approval - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The IRSSA provided two mechanisms through which class members could obtain compensation: (1) the Common Experience Payment (CEP), which was available to all eligible class members who resided at a residential school; and (2) the Independent Assessment Process (IAP), which was available to those claimants who established that they suffered serious physical or sexual abuse, or psychological harm at a residential school - Most claimants under the IAP retained counsel to represent them - Under the terms of the IRSSA, Canada agreed to contribute an amount up to 15% of the compensation awarded to the claimant for legal fees - DEHS represented claimants under the IAP - In July 2006, DEHS entered into a contingency fee agreement with one of its IAP clients for 30% of any compensation awarded - An adjudicator undertook a legal fee review hearing - The Adjudicator adjusted DEHS' proposed fee, reducing the 30% contingency fee to 20% (15% to be paid by Canada, 5% to be paid by the client) - DEHS appealed to the Chief Adjudicator - The Chief Adjudicator dismissed the appeal - DEHS applied for judicial review - An Administrative Judge dismissed the application - DEHS appealed, asserting that the Adjudicator failed to give due or proper weight to the expectations of the client in assessing the fairness and reasonableness of the fee agreement - The Ontario Court of Appeal dismissed the appeal - The Adjudicator's reasons demonstrated that he considered the views of the claimant in arriving at his legal fee review decision - The Adjudicator observed that the claimant signed the fee agreement without any duress or coercion and that the claimant was content with the fee - However, it was open to the Adjudicator to refuse to treat the claimant's expectations as the critical factor in assessing the fairness and reasonableness of the legal fees - See paragraphs 66 to 69.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingency fee - Review and approval - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The IRSSA provided two mechanisms through which class members could obtain compensation: (1) the Common Experience Payment (CEP), which was available to all eligible class members who resided at a residential school; and (2) the Independent Assessment Process (IAP), which was available to those claimants who established that they suffered serious physical or sexual abuse, or psychological harm at a residential school - Most claimants under the IAP retained counsel to represent them - Under the terms of the IRSSA, Canada agreed to contribute an amount up to 15% of the compensation awarded to the claimant for legal fees - DEHS represented claimants under the IAP - In July 2006, DEHS entered into a contingency fee agreement with one of its IAP clients for 30% of any compensation awarded - An adjudicator undertook a legal fee review hearing - The Adjudicator adjusted DEHS' proposed fee, reducing the 30% contingency fee to 20% (15% to be paid by Canada, 5% to be paid by the client) - DEHS appealed to the Chief Adjudicator - The Chief Adjudicator dismissed the appeal - DEHS applied for judicial review - An Administrative Judge dismissed the application - DEHS appealed, asserting that the Adjudicator carried out the fee assessment before DEHS had completed all of the work required - The Ontario Court of Appeal dismissed the appeal - The Chief Adjudicator's designate was aware of the need for additional time to be expended when the fee review appeal was heard - He indicated that the Chief Adjudicator was seized with the dispute regarding the GST and PST and stated that "the Chief Adjudicator may address the matter of fees in this application or if not, the Adjudicator remains seized with this case and can hear more submissions solely on the matter of whether additional fees are justified on the matter of liability for GST and PST" - DEHS did not appear to have pursued the matter as suggested by the Chief Adjudicator's designate - DEHS failed to establish that the terms of the IRSSA were ignored or that the rules of natural justice were breached - See paragraphs 70 to 73.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingency fee - Review and approval - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The IRSSA provided two mechanisms through which class members could obtain compensation: (1) the Common Experience Payment (CEP), which was available to all eligible class members who resided at a residential school; and (2) the Independent Assessment Process (IAP), which was available to those claimants who established that they suffered serious physical or sexual abuse, or psychological harm at a residential school - Most claimants under the IAP retained counsel to represent them - Under the terms of the IRSSA, Canada agreed to contribute an amount up to 15% of the compensation awarded to the claimant for legal fees - DEHS represented claimants under the IAP - In July 2006, DEHS entered into a contingency fee agreement with one of its IAP clients for 30% of any compensation awarded - An adjudicator undertook a legal fee review hearing - The Adjudicator adjusted DEHS' proposed fee, reducing the 30% contingency fee to 20% (15% to be paid by Canada, 5% to be paid by the client) - DEHS appealed to the Chief Adjudicator - The Chief Adjudicator dismissed the appeal - DEHS applied for judicial review - An Administrative Judge dismissed the application - DEHS appealed, asserting that the Chief Adjudicator relied on the erroneous assumption that all Quebec lawyers had agreed to limit their contingency fee to 15% - The Ontario Court of Appeal dismissed the appeal - Despite referencing the supposed agreement among Quebec lawyers, the Chief Adjudicator correctly explained that there was no presumption that the standard fee in an average case was 15% - The Chief Adjudicator confirmed that he understood this by agreeing with the Adjudicator that a 20% fee was appropriate - The error was not significant enough to warrant intervention beyond the comment made by the Administrative Judge in his general directions concerning the nature of the fee review process under the IRSSA and the implementation orders - See paragraphs 74 to 76.

Practice - Topic 8987

Appeals - When appeal available - What constitutes judgment, order or decision - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The IRSSA provided two mechanisms through which class members could obtain compensation: (1) the Common Experience Payment (CEP), which was available to all eligible class members who resided at a residential school; and (2) the Independent Assessment Process (IAP), which was available to those claimants who established that they suffered serious physical or sexual abuse, or psychological harm at a residential school - Most claimants under the IAP retained counsel to represent them - Under the terms of the IRSSA, Canada agreed to contribute an amount up to 15% of the compensation awarded to the claimant for legal fees - DEHS represented claimants under the IAP - In July 2006, DEHS entered into a contingency fee agreement with one of its IAP clients for 30% of any compensation awarded - An adjudicator undertook a legal fee review hearing - The Adjudicator adjusted DEHS' proposed fee, reducing the 30% contingency fee to 20% (15% to be paid by Canada, 5% to be paid by the client) - DEHS appealed to the Chief Adjudicator - The Chief Adjudicator dismissed the appeal - DEHS applied for judicial review - An Administrative Judge dismissed the application - DEHS appealed - The Chief Adjudicator moved to quash the appeal, arguing that when the Administrative Judge issued directions, he was acting pursuant to the IRSSA and not in his capacity as a judge of the Superior Court - Directions given by the Administrative Judge were not court orders in the traditional sense - Rather, they were made pursuant to a self-contained system designed to administer a private agreement reached by the parties - The Ontario Court of Appeal dismissed the motion - Under the IRSSA, the Administrative Judges were representatives of the nine provincial and territorial superior courts that approved the IRSSA - Thus, in issuing his directions, the Administrative Judge was acting in a judicial capacity - The Administrative Judge's directions finally determined the issue whether legal fee review decisions of the Chief Adjudicator were subject to any further appeal or review - His directions were incorporated as a final order of a judge of the Superior Court of Justice - An appeal lay to this court pursuant to s. 6(1)(b) of the Courts of Justice Act - See paragraphs 37 to 41.

Practice - Topic 8987

Appeals - When appeal available - What constitutes judgment, order or decision - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The IRSSA provided two mechanisms through which class members could obtain compensation: (1) the Common Experience Payment (CEP), which was available to all eligible class members who resided at a residential school; and (2) the Independent Assessment Process (IAP), which was available to those claimants who established that they suffered serious physical or sexual abuse, or psychological harm at a residential school - Most claimants under the IAP retained counsel to represent them - Under the terms of the IRSSA, Canada agreed to contribute an amount up to 15% of the compensation awarded to the claimant for legal fees - DEHS represented claimants under the IAP - In July 2006, DEHS entered into a contingency fee agreement with one of its IAP clients for 30% of any compensation awarded - An adjudicator undertook a legal fee review hearing - The Adjudicator adjusted DEHS' proposed fee, reducing the 30% contingency fee to 20% (15% to be paid by Canada, 5% to be paid by the client) - DEHS appealed to the Chief Adjudicator - The Chief Adjudicator dismissed the appeal - DEHS applied for judicial review - An Administrative Judge dismissed the application - DEHS appealed - At issue was whether there were any circumstances in which a Chief Adjudicator's decision in the fee review process was reviewable by a judge of Superior Court - The Ontario Court of Appeal stated that "[a] fee review decision of the Chief Adjudicator in the IAP is not reviewable by way of an appeal to the Superior Court, or by way of an application for judicial review to the Superior Court. The Chief Adjudicator's decision is only reviewable by an Administrative Judge through a Request for Direction under the CAP, but such review is available only in very limited circumstances. In particular, a Request for Direction may only be brought where it is alleged that the Chief Adjudicator's decision reflects a failure to enforce the provisions of the S.A. and the implementation orders. This very limited availability of a right to seek review of a Chief Adjudicator's decision reflects both the importance of the finality of decisions under the S.A. and the relative expertise of the Chief Adjudicator in the legal fee review process." - See paragraphs 45 to 58, 77 and 78.

Counsel:

Harley Schachter, for the appellant, Duboff Edwards Haight & Schachter;

E.F. Anthony Merchant, Q.C., for the intervener, Merchant Law Group LLP;

Charles Hofley and Leanne N. Fisher, for the respondent, Chief Adjudicator, Independent Assessment Process;

Catherine Coughlan and Dalal Mouallem, for the intervener, Attorney General of Canada.

This motion and appeal were heard on January 31, 2012, by Rosenberg, Juriansz and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Rouleau, J.A., on July 4, 2012.