Fontaine et al. v. Canada (Attorney General) et al., (2012) 289 O.A.C. 190 (CA)

• Judge: Watt, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 02, 2012
• Jurisdiction: Ontario
• Citations: (2012), 289 O.A.C. 190 (CA);2012 ONCA 206

Fontaine v. Can. (A.G.) (2012), 289 O.A.C. 190 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. AP.005

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 McCallum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee (plaintiffs/respondents) 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 Methodistchurch 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 2 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 Jesusmarie, 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 MacKenzieFort Smith, the Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc. (defendants/appellants)

(M41060; M41077; C54782; 2012 ONCA 206)

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

Ontario Court of Appeal

Watt, J.A.

March 27, 2012.

Summary:

The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding. The Government of Canada, various religious institutions and the class members, First Nations people who attended Indian Residential Schools across Canada, agreed to dispute resolution schemes authorizing payment of various benefits including compensation, for former students with validated claims. The IRSSA permitted applications to add further residential schools and other institutions to Schedule "F" of the Agreement and described the procedure to be followed to do so.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 4938, added two residential schools to schedule "F". The Attorney General (AG) of Canada appealed. The AG moved for a stay of the order under appeal. The respondents sought two orders: (1) to expedite the hearing of the appeal (which was not contested); and (2) directions about the commencement date from which the time for delivery of the notice of appeal began to run.

The Ontario Court of Appeal, per Watt, J.A., dismissed the motion and the cross-motion.

Practice - Topic 8959

Appeals - Stay of proceedings pending appeal - Considerations - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The Government of Canada, various religious institutions and the class members, First Nations people who attended Indian Residential Schools across Canada, agreed to dispute resolution schemes authorizing payment of various benefits including compensation, for former students with validated claims - The IRSSA permitted applications to add further residential schools and other institutions to Schedule "F" of the Agreement and described the procedure to be followed to do so - A motions judge added two residential schools to schedule "F" - The Attorney General (AG) of Canada appealed - The AG moved under rules 63.01(1) and (2) for a stay of the order - The Ontario Court of Appeal, per Watt, J.A., dismissed the motion - Rule 63.01(1) did not provide for an automatic stay of the order under appeal and the court would not summon rule 63.02(1)(b) as a discretionary substitute - The addition of the schools to Schedule "F" did not create any fixed debt obligation for the AG - The addition entitled residents/students of those schools to apply for compensation - To obtain compensation, each former resident/student of the added institution had to meet the eligibility requirements imposed under IRSSA - It was then that the AG was required to pay compensation in accordance with the applicable scheme - The obligation was not fixed by any term of the order, rather it was prospective and contingent on satisfaction of the relevant criteria - In the absence of a term in the order under appeal that created a fixed debt obligation, the automatic stay for which rule 63.01(1) provided was not engaged by delivery of the notice of appeal - The discretionary stay authority rule 63.02(1), which the AG invoked as an alternative, also eluded the AG's grasp - The appeal involved a serious issue - However, there was no irreparable harm and the balance of convenience settled in favour of the respondents - See paragraphs 20 to 47.

Practice - Topic 9000

Appeals - Notice of appeal - Time for filing and service of notice of appeal - The Indian Residential Schools Settlement Agreement (IRSSA) represented the resolution of a national class action proceeding - The Government of Canada, various religious institutions and the class members, First Nations people who attended Indian Residential Schools across Canada, agreed to dispute resolution schemes authorizing payment of various benefits including compensation, for former students with validated claims - The IRSSA permitted applications to add further residential schools and other institutions to Schedule "F" of the Agreement and described the procedure to be followed to do so - A motions judge added two residential schools to schedule "F" - The Attorney General (AG) of Canada appealed - The respondents sought directions about the commencement date from which the time for delivery of the notice of appeal began to run - The Ontario Court of Appeal, per Watt, J.A., held that there was no basis upon which to depart from the general rule that the operative date for the purposes of calculating the time within which the notice of appeal was to be delivered was August 16, 2011, the date the reasons for decision were released - Nothing of substance remained undecided - It followed that the notice of appeal was delivered out of time - In the absence of a motion to quash the appeal, the court extended the date for service and filing to the date each occurred, namely, December 16, 2011 - See paragraphs 48 to 62.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - [See Practice - Topic 9000 ].

Cases Noticed:

JR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 32].

Ogden Entertainment Services v. United Steelworkers of America, Local 440 et al. (1998), 110 O.A.C. 297; 38 O.R.(3d) 448 (C.A.), refd to. [para. 34].

International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C.(2d) 252 (Ont. C.A.), refd to. [para. 34].

Horsefield v. Registrar of Motor Vehicles (Ont.) (1997), 102 O.A.C. 285; 35 O.R.(3d) 304 (C.A.), refd to. [para. 34].

Byers v. Pentex Print Masters Industries Inc. et al. (2003), 167 O.A.C. 159; 62 O.R.(3d) 647 (C.A.), refd to. [para. 57].

Counsel:

Sheila Read, for the appellant/moving party;

Susan Vella, for the respondents, Windigo First Nations Council and Nishnawbe Aski Nation.

This motion and cross-motion were heard on March 2, 2012, by Watt, J.A., of the Ontario Court of Appeal, who delivered the following judgment on March 27, 2012.