Fontaine et al. v. Canada (Attorney General) et al., 2016 MBQB 159

• Judge: Edmond, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 03, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBQB 159;[2016] Man.R.(2d) TBEd. AU.013

Fontaine v. Can. (A.G.), [2016] Man.R.(2d) TBEd. AU.013

MLB being edited

Currently being edited for Man.R.(2d) - judgment temporarily in rough form.

Temp. Cite: [2016] Man.R.(2d) TBEd. AU.013

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 16-01-01608; 2016 MBQB 159)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Edmond, J.

August 3, 2016.

Summary:

JW attended an Indian Residential School ("IRS") in Manitoba and applied for compensation pursuant to the Indian Residential Schools Settlement Agreement ("IRSSA"). JW filed a request for direction ("RFD") under the IRSSA. He claimed that he had been wrongly denied compensation under the Independent Assessment Process ("IAP") established by the IRSSA. JW and the law firm acting on his behalf (collectively the "Requestors"), submitted that IAP adjudicators had failed to enforce the provisions of the IAP, resulting in the improper denial of claims of sexual abuse. The Requestors were specifically concerned with the interpretation of item SL1.4 of Schedule "D" to the IRSSA, which defined a compensable category of abuse as follows: "Any touching of a student, including touching with an object, by an adult employee or other adult lawfully on the premises which exceeds recognized parental contact and violates the sexual integrity of the student." At issue on the RFD was: (1) what was the court's jurisdiction to hear an RFD that essentially challenged the result of a Re-Review of a claim alleging compensable sexual abuse; (2) if there was jurisdiction to consider the substantive decision of the Re-Review Adjudicator, what was the standard of review; (3) did the Re-Review Adjudicator fail to implement the terms of the IRSSA in this case; and (4) if so, what remedy should be granted?

The Manitoba Court of Queen's Bench held that: (1) it had the power to review the decision of the Re-Review Adjudicator to determine whether she failed to apply the terms of the IRSSA and specifically the IAP Compensation Rules; (2) the court's jurisdiction in reviewing the substantive decisions of IAP adjudicators was confined to ensuring that the Re-Review Adjudicator did not endorse a legal interpretation that was so unreasonable that it amounted to a failure to properly apply the IAP to the facts of a particular case; (3) the interpretation of SL1.4 adopted by the Adjudicator and approved by the Review Adjudicator and Re-Review Adjudicator was fundamentally inconsistent with the plain language of SL1.4 and with the criminal law jurisprudence regarding sexual assault that the Adjudicator purported to apply; and (4) the court's remedial order should be confined to the record before the court regarding JW and be consistent with the parties' clear intention, as reflected in the IRSSA, that IAP adjudicators, and not judges, should find facts and determine amounts of compensation in accordance with the IAP. The court made the following orders: (1) a declaration that the Re-Review Adjudicator failed to implement the IRSSA by failing to correct the Adjudicator's decision that SL1.4 claims could only be compensable if the claimant proved that the perpetrator had a sexual purpose or sexual intent; (2) an order that JW's claim be sent back to a first-level IAP adjudicator to reconsider JW's claim in accordance with the court's reasons; and (3) JW was entitled to costs and, failing agreement on the quantum, any of the parties could contact the trial coordinator to arrange a date to make submissions on costs.

Indians, Inuit and Métis - Topic 4805

Indian Residential Schools Settlement Agreement - Interpretation - JW attended an Indian Residential School ("IRS") in Manitoba and applied for compensation pursuant to the Indian Residential Schools Settlement Agreement ("IRSSA") - JW filed a request for direction under the IRSSA - He claimed that he had been wrongly denied compensation under the Independent Assessment Process ("IAP") established by the IRSSA - JW and the law firm acting on his behalf submitted that IAP adjudicators had failed to enforce the provisions of the IAP, resulting in the improper denial of claims of sexual abuse - The Manitoba Court of Queen's Bench concluded that "the IAP hearing adjudicators, review adjudicators and re-review adjudicators have a duty to enforce the terms of the IRSSA and in doing so, they do not have jurisdiction to apply an unreasonable interpretation to the terms of the IRSSA in determining whether a compensable claim has been made out." - See paragraph 33.

Indians, Inuit and Métis - Topic 4805

Indian Residential Schools Settlement Agreement - Interpretation - JW attended an Indian Residential School ("IRS") in Manitoba and applied for compensation pursuant to the Indian Residential Schools Settlement Agreement ("IRSSA") - JW filed a request for direction under the IRSSA - He claimed that he had been wrongly denied compensation under the Independent Assessment Process ("IAP") established by the IRSSA - JW and the law firm acting on his behalf (collectively the "Requestors"), submitted that IAP adjudicators had failed to enforce the provisions of the IAP, resulting in the improper denial of claims of sexual abuse - The Requestors were specifically concerned with the interpretation of item SL1.4 of Schedule "D" to the IRSSA, which defined a compensable category of abuse as follows: "Any touching of a student, including touching with an object, by an adult employee or other adult lawfully on the premises which exceeds recognized parental contact and violates the sexual integrity of the student." - The Manitoba Court of Queen's Bench declared that "the Re-Review Adjudicator failed to implement the IRSSA by failing to correct the Adjudicator's decision that SL1.4 claims could only be compensable if the claimant proved that the perpetrator had a sexual purpose or sexual intent" - See paragraphs 42 to 58.

Indians, Inuit and Métis - Topic 4806

Indian Residential Schools Settlement Agreement - Request for direction from the supervising judge - JW attended an Indian Residential School ("IRS") in Manitoba and applied for compensation pursuant to the Indian Residential Schools Settlement Agreement ("IRSSA") - JW filed a request for direction under the IRSSA - He claimed that he was wrongly denied compensation under the Independent Assessment Process ("IAP") established by the IRSSA - JW and the law firm acting on his behalf (collectively the "Requestors"), submitted that IAP adjudicators had failed to enforce the provisions of the IAP, resulting in the improper denial of claims of sexual abuse - The Manitoba Court of Queen's Bench held that it had "the power to review the decision of the Re-Review Adjudicator to determine whether she failed to apply the terms of the IRSSA and specifically the IAP Compensation Rules. [T]his is a limited form of curial review, reserved for exceptional cases, and ... I must ensure that I do not engage in rewriting the IRSSA by effectively giving the Requestors a right of appeal and/or review for which they did not bargain." - See paragraph 35.

Counsel:

Martin U. Kramer, for the claimant, J.W. and REO Law Corp.;

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

William S. Gange and Jacqueline G. Collins, for intervenor, Chief Adjudicator, Indian Residential School Adjudication Secretariat;

Stuart Wuttke, for intervenor, Assembly of First Nations.

This application for directions was heard by Edmond, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on August 3, 2016.