And To: Kathleen Mahoney LawProfessional Corporation And To

2049482347
COURT OF APPEAL - JUD
09: 57: 25 a.rn,
2014-10-09
g
Manitobcl Court of Appeal
408 York A venue - #226
Winnipeg, Manitoba
R3C OP9
To:
Attention:
And To:
Department of Justice Canada
.T.L. Brooks & G. l. Soonarane
Kathleen Mahoney Law Professional
Corporation
Attention:
And To:
Attention:
.Fax:
Fax:
Fax:
From:
Company:
Phone:
Fax:
Date:
Pages including this
cover page:
K. E. Mahoney
Phillips Gill LLP
M. W. Mulholland
1 (416) 973-2319
1 (403) 208-1714
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Charlotte Benedictson
Manitoba Court of Appeal
(204) 945-2080
(204)948-2347
October 9,2014
42
Message
Further to my conversation with you/your assistant, please see attached
decision in fontaine et al. v. Canada (Attorney General) et al., which has
been released today. An additional copy will follow by regular mail.
Thank you.
This telecopy Is confidentiat. If tke reader Is nut the intended reaptent or 1I1e«gelli thereof, you are
hereb» notified that any dissemination, distribution or copying of tllis fax is strictly prohibited. If .1'0"
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received this fa»: In error, please IIolify us immedlatety (inti return lite original fax to our offlc« hy
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mail at our expense.
1/42
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Citation: Fontaine et at. v. Canada (Attorney
General) et at, 2014 MBCA 93
2014- 10-09
Date: 20141009
Do(;ket: AI 13-30-08093
IN THE COURT OF APPEAL OF MANITOBA
Coram:
Madam Justice Freda M. Steel
Mr. Justice Marc M. Monnin
Madam Justice Diana M. Cameron
BETWEEN:
FRED KELLY
)
)
(Plaintiff]
Respondent
- and-
THE A TTORNEY GENERAL OF CANADA
(Defendant) Appellant
- andLES OBLATS DE MARIE IMMACULEE
DC! MANITOBA
)
)
)
)
)
)
)
)
)
)
)
)
J. L. Brooks and
G. 1. Soonarane
for the Appellant
K. E. Mahoney and
M. W. Mulholland
for the Respondent
F. Kelly
)
(Defendant) Respondent
- and-
)
)
)
LARRY PHILIP FONTAINE in his
personal capacity and ill his capaci~v as
the Executor ofthe estate of Agnes Mary
Fontaine, deceased, et at.
(Plaint{ffs)
)
)
No llppellrance
for the Respondent
Les Oblats de Marie
lmmaculee du
Manitoba
)
)
)
Appeal heard:
)
April
23,
zot»
)
)
- and-
)
THEPRESBYTERLANCHURCH
)
)
IN
CANADA et al.
)
(Delendants)
)
)
)
Appeal from 20 I) MUQD 272,298 Man.R.
See 2014 MBQB 20, 302 Man.R. (2d) 170
(2d)
214
Judgment delivered:
October 9,2014
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CAMERON .lA.
Introduction
III
This is an appeal by the Attorney
General
of Canada
(Canada)
from an order providing direction made by the supervising judge pursuant to
the lndian
Broadly
Residential
Schools
Settlement
Agreement
(the Agreement).
stated, the issue is whether Fred Kelly (the respondent),
a person
with a claim resulting from physical or sexual abuse suffered while attending
an Indian residential
school (residential
amount that can be ordered
Independent
Assessment
school) that exceeds the maximum
by an adjudicator,
fully and finally exits the
Process (the lAP) of the Agreement
by choosing to
access the court process in order to pursue the full amount of his claim as
provi ded for in the Agreement.
[21
Applying
the
basic
principles
including a review of the Agreement
it was concluded
of' contractual
as a whole, the factual matrix in which
and the specific wording
conclude that the respondent
interpretation,
of the provision
in question,
I
does not fully and finally exit the TAP and is
still entitled to all the benefits it confers despite the fact that he has been
granted access to the courts to determine
the discrete issue of the damages
for actual income loss.
Overview (,'lfthe Agreement
131
For over 100 years, the Government
then policy
to assimilate
Aboriginal
participated
in the development
people
of Canada,
in pursuit of its
into the dominant
and administration
of residential
culture,
schools.
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Most of these schools were run in conjunction
which were responsible
system
for the day-to-day
with various church entities,
operation
of the schools.
the forcible removal. of Aboriginal
involved
children
The
from their
homes and placement and education in the residential schools.
[4]
Aside from forcible removal from the family and community,
was a concerted
effort to undermine
and indeed abolish
the languages,
spiritual and cultural traditions and way of life of the students.
many students suffered inadequate
clothing
and
shelter.
Numerous
Iiving conditions
students
there
In addition,
including lack of food,
suffered
serious
emotional,
physical and sexual abuse.
In
(5]
. individually
entities.
1.990s, Fonner residential
the
and by way of class action, Canada
They sought compensation
residential
school
began
and the various
suing,
church
for the harm that they suffered at the
One of the goals of the Agreement,
schools.
expeditious
students
in part, was the
resolution of all ongoing litigation related to residential
schools,
since many students who had attended residential schools had already passed
away and others
were quite elderly.
See Baxter v, Canada (Attorney
General) (2006), 83 O.R. (3d) 481 at paras. 14,38.
[6]
As
was proposed.
a
result
or extensive
negotiations,
a
Canada-wide
Agreement
It involved obtaining, on the consent of the parties, approval
orders of a single class action from courts across the country.
Tn Manitoba,
the approval decision was authored by the supervising judge in Semple et al.
v.
Canada (Attorney General) et al., 2006 MHQR 285, 213 Man.R. (2d)
220. The resultant order (the Approval Order) encompasses
the Agreement
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and a number of schedules,
171
TIle Approval Order provided a deadline for those who wished to
opt out of the class action. Those who did not opt out by the deadline were
deemed to be included in the release against the defendants provided by the
Agreement.
The Approval Order provided that all class members "fully,
'finally and forever" released the defendants "from any and all actions."
[8]
The Approval Order also provided that "this Court shall supervise
the implementation of the Agreement and this judgment and, without
limiting the generality of the foregoing, may issue such orders as are
necessary to implement and enforce the provisions of the Agreement and
this judgment."
Further, it allowed for the parties to apply to the court for
direction concerning the implementation, administration or amendment of
the Agreement or implementation of the Approval. Order.
[9]
The Agreement, in part, contains a general compensatory payment
applicable to all individuals who attended a residential school known as the
Common Experience Payment (CEP). In addition to the CEP, provision is
made for individuals to advance claims, known as c.ontinuing claims about
whic.h more will be written, as a result of serious physical or sexual abuse or
other wrongful acts suffered at the residential schools.
These claims are
dealt with on an individual basis through (the lAP).
11()I
The issue in this case involves the TAP and the interpretation of
how that process works in a situation where the claim exceeds the monetary
limit that can be granted by an adjudicator.
examination of the lAP will help explain the issue.
A more comprehensive
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The lAP
1111
The lAP, established
in Schedule
D of the Agreement,
process to be used with respect to continuing
claims.
is the
Continuing
claims
arise from a limited number of torts defined in Part I of Schedule D, namely:
i)
sexual and physical
Government,
assaults
a church
committed
entity
by adult employees
or other adults
of
lawfully
on the
by one student
against
by adult employees
of the
premises;
ii)
physical
or sexual
assaults
committed
another in defined circumstances;
iii)
any other wrongful
Government
and,
acts committed
or church
entity or other adults
lawfully
on the
premises (other wrongful acts).
These arc the only claims that can be advanced pursuant to the lAP.
Any
other action that a claimant might have is subject to the release.
[12]
The process
standard litigation.
by an adjudicator
to establish
a continuing
It employs an inquisitorial
claim is different
process that is presided over
chosen by a selection board comprised of a representative
each from former students, counsel for the claimants,
Canada.
possession
than
Adjudicators
are selected
church entities and
on the basis of 16 criteria
of a law degree, knowledge
of, and sensitivity
including
to, Aboriginal
culture and history, and knowledge of, and sensitivity to, sexual and physical
abuse issues.
While it is presumed
that claimants are represented
by legal
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counsel, only the adjudicator may directly question claimants.
1131
Aside from the process, there are many benefits
included in the
lAP which would not be available in a normal civil action.
claimants are eligible for a guaranteed
and disbursements
contribution
associa.ted with participation
For example,
toward their legal costs
in the process.
Claimants
are also eligible to have costs for support persons to travel to the hearing,
counselling
ceremonies,
services
for the
a comfortable
hearing
process,
if necessary,
cultural
setting for the hearing wherein the claimant has
the choice of location, a guarantee
of privacy and confidentiality
respect to the information disclosed
and, access to a roster of experts to
eliminate the prospect of competing
expert reports.
with
The Agreement
also
allows for those who are over 70 years of age or of failing health, as is the
respondent in this proceeding, to have priority in the hearing process.
["14]
acts,
The JAP rules require claimants to establish compensable
consequential
opportunity
harms,
aggravating
and actual income loss.
categories and a point-to-dollar
factors,
consequential
proven
loss
of
Points are assigned for the various
conversion
is included,
except for actual
income loss. For actual income loss. financial awards are to be determined
using the "legal analyses and amounts awarded in court decisions
for like
matters."
1151
Pursuant to the lAP, claimants may choose to claim consequential
opportunity
loss and/or actual income loss caused by the abuse alleged.
Where a claimant seeks to claim actual income loss, the maximum
losses is $430,000.
for all
Of the $430,000, a maximum of $250,000 is allowed for
2049482347
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actual income loss. Where, as in this case, the applicant wishes to advance a
claim of actual income loss in excess of the maximum, he must invoke the
access to the courts provision found in the resolution process in Schedule D.
The Resolution Process
1161
The interpretation
of the prOViSIOn containing
the resolution
process for lAP claims in Schedule D, Part TTT(b)is critical to the issue in
this case. It states:
Ill. ASSESSMENT
PROCESS OUTLINE
b. ResoJu tion Processes within this lAP
I.
This lAP consists of a standard track, a complex issues
track, and a provision for access to the courts for the
resolution or certain or the continuing claims as set out
below.
11.
The complex issues track is Ior those continuing claims
where the Claimant seeks an assessment of compensation
for proven actual income losses resulting from continuing
claims, and for other wrongful
aCL
claims (category [other
wrongful act} on page 3).
iii. 8..1thu~t
or a Claimant, access to the courts 10
resolve a continuing claim may be granted by the Chief
Adjudicator whert~ he or she is satisj-ied that:
there is sufficient evidence that thc claim is one ~J19rc
the actual income loss or consequential
loss of
QQP._Qrtunity ma.y exceed the maximum permitt.ed by
thi.s lAP;
there is sufficient evidence tha; the Claimant suffered
catastrophic
physical harms such that compensation
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through the courts may exceed the maximum
permitted by this fAP; or,
available
in an other wrongful act claim, the evidence required
to address the alleged harms is so complex and
extensive that recourse to the courts is the more
appropriate procedural approach.
In such cases, the Approval Orders will exem.pt ths:.
continuing ~91~ims{'rom the deemed rcl<;as.~'md thereall:er
the matter shall bC_A,t;Ldressedby the courts a<;fon1iD~
tbci~ owrlslandards,
rules and proC$sses.
[emphasis added]
[17]
In this decision,
1 will refer to Part Tll(b) of Schedule
0 as the
provision.
[18]
As earlier stated, at the heart of this appeal is the applicability
the lAP in circumstances
such as the respondent's,
of
being that of a claimant
who elects to access the court on the basis that his actual
income
loss
exceeds the maximum amount that can be ordered by an adjudicator.
13ackground and History of Proceedings
[19]
The respondent
is a class member pursuant to the Agreement.
has received CEP compensation
He
for having attended two residential. schools
as a child. He is also a claimant under the TAP on the basis that he suffered
physical and sexual abuse while attending a residential
school.
That is, he
asserts a continuing claim which includes actual income loss.
[20]
Pursuant to the resolution process outlined earlier, the respondent
sought the permission of the chief adjudicator to access the courts to resolve
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his continuing claim.
At the contested hearing before the chief adjudicator,
the issue was the quantum of the respondent's
[21]
The chief
respondent's
permitted
claim
adjudicator
of actual
loss.
found that, on a preliminary
income
loss may exceed
basis, the
the maximum
by the lAP, and granted him access to the courts to resolve his
claim. In reaching this conclusion, the chief adjudicator was careful to state
that he was not conducting a full assessment of the evidence of the elements
of the claim because, "[ijf this were required, presumably
the request for
access to the courts would be made after an lAP hearing which involved a
full assessment of the evidence,"
[22]
He continued by stating:
.... Although "sufficient evidence" is required, one must be
mindful that if access to the court is not granted and a claimant is
required t.o pursue his or her claim in the lAP, a decision finding
that actual income loss or loss of opportunity exceeded $250,000
(but was limited to that amount by the TAP) would visit an
injustice on the claimant.
It is such a consequence that was
intended to he avoided by allowing access to the courts in certain
situations. . ...
[23J
respondent
After the decision
of the chief adjudicator
was rendered,
tiled a request for direction pursuant to the Agreement.
request, .the respondent
asked, among
other things,
whether
the
In that
his entire
continuing claim or only his claim for actual income loss would be subject to
the jurisdiction
of the courts.
Further, he sought a determination
of whether
the other provisions and benefits in the Agreement not related to the discrete
issue of actual income loss would still apply to his continuing claim.
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Decision of the Supervising
/241
Tn his written
Judge
decision,
before him as stated in the request
the supervising
for direction.
judge
listed the issues
Those issues were (at
para. 14):
(a)
Whether an actual income loss award forms a discrete and
distinct head of damage available to a claimant within the
compensation framework of the lAP;
(b)
Whether under the compensation framework of the lAP,
access to the courts is limited to the discrete and distinct
determination
of matters identified in [subs. (iii) of the
provision], which in this case would be the calculation of actual
loss of income exceeding $250,000;
(c)
Whether a claimant, alter obtaining access to the courts for
the purpose of the calculation of his actual income award, is
entitled to his rights to unrelated benefits granted by the lAP;
(d)
Whether a claimant can claim the 15% legal fee
contribution within the lAP notwithstanding his obtaining access
to the courts lor the purpose of the calculation of his actual loss
of income award;
(e)
Whether the choice-of-location provision of the lAP still
applies LO a claimant who has obtained access to the courts for
the purpose of the calculation or his actual loss of income award;
(I)
Whether prejudgment interest is included in the calculation
of actual loss of income;
Whether loss of pension benefits are included in the
calculation of actual loss of income; and
(h)
Whether in the event that the claimant is unable to meet the
requirements of establishing an actual income loss award, he can
bring an lAP claim under the standard track of the compensation
framework.
(g)
11/42
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125]
11
The supervising judge commenced
Agreement
his analysis by noting that the
was a contract that called for the interpretation
judgment
rather than a statutory enactment"
a fair and comprehensive
Indian Residential
resolution
basis" (at para. 20).
access to justice
was concluded
the
"in order to
to the tens of thousands
of
School survivors alive today, the vast majority of whom
did not - and would likely not have managed
individual
of an "order of
(at para. 18). In discerning
intent of the parties, he stated that the Agreement
provide
12/42
2014-10-09
to - seek compensation
on an
He stated that the matter was an issue of
and cited the Action Committee
on Access
to Justice in
Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for
Change,
(Ottawa:
by
the
Hon.
Mr.
Justice
Thomas
A.
Cromwell
October 2013) <http://www.cfcjfcjc.org/sites/defuultlfiles/docs/20
13/AC ~Report _ EnglishFinal.pdf>
the proposition
Agreement,
noted that,
Report), as authority for
that if a creative solution can be found which respects the
should be preferred
t.hat solution
in
(the Cromwell
the preamble
desire for reconciliation"
of the Agreement,
(at para. 22).
(see para. 21).
Finally, he
"[tjhe parties also cite their
It was against this backdrop that he
conducted his analysis.
[26]
The supervising
subs. (iii) of the provision
judge
stated that the court access provision
lacked clarity as to the consequences
of being
granted access to the courts. He wrote (at para. 23):
.... In this case, there is a lack of clarity as to the consequences
of being granted access to the courts pursuant to the [subs. (iii) of
the provision]
(p. 8). In particular,
the provision
In
reads in part:
In such cases, the Approval Orders will exempt
the
continuing claims from the deemed release, and thereafter the
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rnaller shall he addressed by the courts according to their own
standards, rules and processes.
[emphasis added
127J
J
He stated that the question was whether the word "matter'
meant
the entire continuing claim or only the issue of actual. income loss. Based on
the fact that actual income loss awards form a discrete head of damages in
the lAP and that "[ajctual income loss is assessed separate and apart from
the points system otherwise
used to calculate
found that it was conceivable that the "matter"
damages"
(at para. 28), he
could be referring to income
loss only.
[28]
The supervising judge concluded that, on the basis of the context
of the Agreement
and the general intent of the parties, the word "matter" is
intended to refer only to income calculation and not
the
entire continuing
claim. Further, he stated that the consequential bifurcation of proceedings
allows for the expertise of both the adjudicators and the courts to be
accessed.
[29]
In the supervising judge's view, his interpretation was consistent
with that expressed
by Veale 1. in his settlement approval
decision in
Fontaine et al. v. Canada (Attorney General), 2006 YKSC 63, 35 C.P.C.
(6th) 134 (Fontaine 2006), where he wrote (at para. 14):
.... Actual income loss, which was not compensable
previously,
has been added with awards up to $250,000. In very serious
cases, the adjudicator can refer the income issue to court where
there is no compensation
ceiling .....
13/42
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[30]
considered
the issue of income
the application
Agreement
suggests
as having
supervising
apply
calculation,
that a claimant
a continuing
claim
judge
benefits of the Agreement
who has accessed
within
judge was clear that the benefits
in the assessment
the supervising
claim on the basis that the language
in the event of a "conflict
procedures
was granted access to the court
of the substantive
the balance of the respondent's
viewed
l3
Having decided that the respondent
only regarding
14/42
2014-10-09
of the
the courts is still
the lAP.
However,
in the Agreement
with the court's
to
the
would not
rules, standards
and
of his income loss claim" (at para. 36). In his
view, pa.rt of the court's standards mandated the application
of the "but for"
test in the court proceedings.
[31]
In the
result,
the supervising
judge
provided
the following
direction (at para. 51);
(a)
It will be for the adjudicator to determine whether abuse
occurred, and what compensation is owed pursuant t.o the regular
compensation
grid;
Damages for actual income Joss wi II be determined by the
court in a process ill itiated by Ithe respondent] hy way of
originating Notice of Application. to be filed upon completion of
(b)
(a);
While deciding the issues raised in Hem (b), the court will
also consider whether the parties intended to allow a claim for
lost pension to be included in a court's assessment of actual
income Joss;
(c)
(d) To the extent possible, deference should be extended to the
adjudicator's factual determinations;
(e)
In making
the
determination
as to
damages for lost
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income, the court will employ a."but for" causation test;
(I)
On determination of the issues referred to in (b) and (c),
the court shall refer the matter back to the adjudicator who shall
then implement the lAP settlement. This includes awarding
additional points for consequential
loss or opportunity
if
appropriate, and providing the Releasees (as defined in the
Settlement Agreement) with a release. A judgment will not be
entered in the court records. Instead, the court's determination or
damages for lost income will be incorporated within the
adjudicator's
decision in accordance
with Schedule Tr',
Appendix XII, page 46; and
(g)
The panics otherwise remain bound by the terms of the
Settl ement Agreement.
[321
It is from the above direction that Canada appeals.
The Issues
[33]
Whi le Canada listed four grounds of appeal, it only addressed the
three issues in oral and written argument, which r have summarized as:
1. The supervising judge erred in law in failing to consider the
plain language of the provision and in his finding that it lacked
clarity.
2. The supervising judge erred in applying the concept of access to
justice as an interpretive principle.
3. The supervising judge erred in interpreting
manner
that
is unworkable
unsupported by the lAP.
and
the provision
incompatible
with
in a
and
2049482347
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The Positions of the PaljiCfi
[34]
While the positions of the parties are set out i.n more detail later,
below is a general overview.
[35]
Canada's
position is that the plain and ordinary meaning of the
word "matter" as it is used in the provision refers to the entire continuing
claim as opposed to the computation
of damages for actual income loss.
Thus, it argues, it was an error to find the word to be ambiguous
interpret
it in the manner done by the supervising judge.
argues that the interpretation
unsupported
of the provision
and
Next, Canada
was incompatible
with and
by the contract as a whole. Further, Canada maintains that the
supervising judge erred by applying the concept of access to justice as an
interpretive
tool.
supervising judge
Finally,
'5
Canada
asserts
decision is not procedurally
that the application
of the
supported by the Agreement
and results in an absurdity.
[36]
The respondent
interpreting
maintains that the supervising judge did not err in
the Agreement.
Rather, he asserts that the supervising judge
interpreted the provision in the context of the entire Agreement and properly
considered the factual matrix surrounding
it. The respondent maintains that
the supervising judge did not err in applying the concept of access to justice
as an interpretive principle on the basis that it is one of the purposes of the
Agreement.
Further, the respondent argues that to interpret the provision in
a manner that results in his full and final release from the lAP would create
an absurd result in that those who were the most harmed by the residential
school experience
would be left without the benefits afforded by the class
16/42
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action settlement
16
of which they arc class members.
clear language of the Agreement
17/42
2014-10-09
He maintains
that the
shows that actual income loss is intended to
be a discrete matter to be dealt with by the court as opposed
to the entire
continuing claim.
Analysis
Standard of Review
[37]
dependent
The standard of review to be applied to contractual interpretation
<)11
the nature of the question.
Training institute ofManitoba
is
In King v. Operating Engineers
Inc., 2011 MBCA 80, 270 Man.R. (2d) 63,
Steel lA. stated (at para. 21):
or correctness,
in
the area of contractual interpretation, include the application
of
.. .. . .. [Ejrrors
an incorrect
or law
principle,
reviewable on a standard
the failure to consider
a required element
of a legal test, or the failure to consider a relevant factor. ....
[38]
The interpretation
of a contract in the context of the factual matrix
is a question of mixed fact and law. However.
the palpable and overriding
error standard will not apply if a question of law can be extricated
factual considerations
from the
involved.
The question is then treated as one of law
and. the standard is correctness.
See King at paras. 25-26, and Hopkins v.
Ventura Custom Homes Ltd., 2013 MBCA 67 at para. 66, 294 Man.R. (2d)
168.
[391
The above approach to contractual
interpretation
was most recently
affirmed by the Supreme Court of Canada in Sattva Capital Corp. v, Creston
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Moly Corp., 2014
see 53 at paras.
for· a unanimous
interpretation
court,
stated
42-55. In that case, Rothstein .I., writing
that,
involve the application
while
most
of mixed
cases
of contractual
fact and law, extricable
as are identified in
questions oflaw can be identified in such circumstances
King.
[40]
The parties agree, as do I, that both issues involve errors of law or
extricable
questions
correctness.
of law and
are reviewable
on the standard
of
As was stated by Rothstein J. in Sattva, one of the purposes of
drawing a distinction between questions of law and those of mixed fact and
law "is to limit the intervention of appellate courts to cases where the results
can be expected
dispute"
to have an impact beyond the parties to the particular
(at para. 51).
In this case, the Agreement
has applicability
to
thousands of claimants across the country and as such, the manner in which
it is interpreted has great precedential
involved in similar disputes.
value, and brings certainty to others
See Sattva at paras. 5 J -53.
Issue 1: Did the supervi~ing judge err in law in failing to consider the plain
langll~.
or the provision
[41"\
As earlier sta.ted, the main issue is the supervising judge's
and in his finding that it lacked clarity?
finding
that the meaning of the word "matter" in the provision was unclear and his
interpretation
that access to the courts was limited to the discrete matter of'
loss of actual income.
For ease of reference,
the portion of the provision
under contention is reproduced below:
In such cases, the Approval Orders [allowing the clai mant to
access the court] will exempt the continuing claims from the
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1R
deemed release, and thereafter the matter shall be addressed by
the courts according to their own standards, rules and processes,
[emphasis added]
142'1
On the face of it, the word "matter" could mean one of the discrete
circumstances
wherein the chief adjudicator
may make an approval
order
allowing the claimant to access the courts, or, it could mean that the whole
cause of action that formed the basis of the continuing claim is to be
addressed by the court process and is no longer governed by the lAP at all.
While both parties urge the court to find that, on its plain and ordinary
meaning, the word "matter" refers to the interpretation
view, the issue is not so clear.
Fontaine 2006 assumed,
income
loss demonstrates
it advances, in my
Indeed, the mere fact that Veale J. in
albeit without analysis, that the term applied to
that, on the face of it, the issue merits more
consideration.
1431
The cardinal rule of contract interpretation
give effect
to the intentions
document"
tManulife
para. 79).
In considering
construed
of parties
is that the court "should
as expressed in their written
Bank of Canada v. Conlin,
l1996] 3 S.C.R. 4) 5 at
the intent of the parties, the contract should be
as a whole (Scanlon
v, Castlepoint
Development Corp. (1992),
11 O.R. (3d) 744 at pp. 770-71 (C.A.), leave to appeal to the S.c.c. denied,
[1993] S.C.C.A. No. 62 (QL)).
Further, even if no ambiguity
court may consider the factual matrix or surrounding
is found, the
ci rcumstances
as of the
time of the signing of the contract (Sativa at paras. 46-48; King at paras. 6970; and Moore (Geoffrey L.) Realty Inc. v. Manitoba Motor League, 2003
MBCA 71 at para. 13, 173 Man.R. (2d) 300).
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144J
Ambiguity,
such as was found by the supervising
means that the word or phrase in question is "reasonably
than one meaning"
susceptible of more
(lJi- Tech Croup Inc. v. Sears Canada Inc. (200 t), 52
O.R. (3d) 97 at para. 18 (C.A.)).
"the full texl of the contract
circumstances
judge, essentially
Such a determination
in light of the surrounding
is considered,
at the time of its execution,
cannot be made until
if necessary"
(Moore Realty at
para. 25).
Thus. I. will consider the provision in the context of the Agreement
[45]
in its entirety and the surrounding circumstances
to discern the intent of the
parties.
The Preamble to the Agreement
l start my analysis
[46]
commences
with an acknowledgement
organizations
abuses
to the Agreement.
It
that Canada and certain religious
operated the residential schools and that certain harms and
were committed
para. A).
with the preamble
It expresses
against
the children
the parties'
them (see
desire for a fair, comprehensive
lasting resolution of the legacy of residential
and commemoration
of healing, education,
truth
(see para.. C). Also of import to this
case is para. G, which provides:
The Parties, subject to the Approval Orders, agree to settle all
pending individual actions
upon the terms contained
those actions brought by
Actions in the manner set
deemed to have opted out
and
schools (see para. B). Next, it
expresses the parties' desire for the promotion
and reconciliation,
who attended
to Indian Residential Schools
in this Agreement, save and except
individuals who opt out of the Class
out in this Agreement, or who will be
pursuant to Article 1008 of The Code
relating
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ofCivil Procedure ofQuebec.
[47]
ends by stating that the Agreement
The preamble
is not to be
construed as an admission of liability by any of the defendants (see para. J.I).
In oral argument,
[48]
erred
in considering
reaching
the principles
his decision.
that the supervising
of reconciliation
in
and resolution
and were relevant to the approval
the Agreement
they have no application
in the interpretation
of the provision
because i.t constitutes a complete exit from the lAP. I disagree.
the. preamble
judge
Specifically, it argued that, while those principles
were key in reaching
decisions,
Canada maintained
constitutes
part of the Agreement
In my view,
to the
and is relevant
interpretation of it.
[49]
Contractual
background
preambles,
often
called
facts and purpose of an agreement."
recitals,
"set
out
the
Cynthia L. Elderkin
&
Julia S. Shin Doi, Behind and Beyond Boilerplate: Drafting Commercial
Agreements, 3d ed. (Toronto:
Thomson Reuters Canada Limited, 2011) at
25.
[50]
contractual
Generally there arc two principles that govern the use
interpretation.
unambiguous,
between
in
First, where the operative provisions are clear and
they prevail over the recitals where there is any inconsistency
the two.
Second,
where there is ambiguity
provisions the recitals may be considered
Hydro
and Power
in the operative
in the resolution of the ambiguity.
See Dawes, Ex parte. In re Moon (1886),
Columbia
or recitals
J
7 Q.8.D. 275 (C.A.); British
Authority v, GregOJY Manufacturing
Ltd.,
[1979] B.C,J. No. 678 at para. 12 (QL) (C.A.) at para. 12; Co-Operative
COURT OF APPEAL - JUD
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Trust Co. ofCanada v. Receveur, Hansen, Paslowski and Mahon (1985), 40
Sask.R. 315 at para. 19 (C.A.).
1511
I understand that, as noted by Geoff R. Hall in his text Canadian
Contractual Interpretation Law, 2d ed. (Markham:
LexisNexis
Canada.,
2012), a shift in the way courts approach recitals seems to be developing.
That is, some courts now simply consider the recitals as part of the contract
as a whole.
However, as 1 later explain, 1 have found the provision in this
case to be ambiguous and it is on that basis that I rely on the preamble.
Therefore,
it is unnecessary
for me to determine
the extent to which the
preamble might otherwise have been considered.
Other Provisions in the Agreement
1521
definitions
I start by noting that the word "matter"
section of the Agreement.
its entirety demonstrates
varying meanings.
is not included
in the
Further, a review of the Agreement in
that the word "matter"
is used throughout
with
Thus, there is no consistent use of the word "matter" that
might assist in discerning its meaning in the provision.
[531
130th parties referred. to other provisions
of the Agreement
In
argument.
[54]
In support
of his argument
that it is only the discrete issue of
income loss that is the subject of a court access order, the respondent relied
011
other schedules of the Agreement.
For example, Schedule N identifies
guiding principles that were to be used in the negotiation of the Agreement:
.......
[Ajcccsslblc;
victim-centered;
confidentiality
(if
required
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by the former student); do no harm; health and safety of
partici pants; representative; public/transparent;
accountable;
open and honourable process; comprehensive;
inclusive,
educational, holistic, just and fair; respectful; voluntary; flexible;
and forward looking in terms of rebuilding and renewing
Aboriginal relationships ....
[551
Based on the above, the respondent submits that it cannot have
been the intent of the drafters to exclude those who are the most harmed
from the benefits of the lAP. He points to the many significant
hurdles he
would face if he was required to commence a fresh action.
[56]
In response to the respondent's concern regarding hi.s inability to
successfully
pursue an action, Canada points to various provisions
as attachments
to the Agreement
hurdles the respondent
included
which would provide some relief to the
would have to face.
However, Canada admits that
the respondent would still be subject to defences such as vicarious liability
and many other difficulties in proving his claim.
[57]
In my view, while the reality is that the respondent
many hurdles
in proceeding
with his claim
from scratch,
would nice
this is not
necessarily indicative of the intention of the parties.
The Language of the lAP
1581
The respondent
argues
provision itself, other provisions
that, aside
from the language
of the lAP support his interpretation.
of the
For
example, the section just preceding the provision is Schedule D, Part IJT(a)
titled "Core Assumptions
as to Legal and Compensation
Ill(a)(i) of that schedule sets out the following assumption:
Standards."
Part
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All Eligible CEP Recipients will, by the terms of the Approval
Orders, be deemed to have released the defendants
fix all claims
arising from their [residential school] attendance or experience,
subject to retaining the right to resolve within this TAP their
continuing claims lor [residential school] abuse.
[emphasis added]
[59]
On one hand, the respondent
this TAP" indicate that the continuing
argues that the words "resolve within
claim remains within the lAP, even in
the event that access to the courts is provided,
[60]
On the other hand, Canada
interpretation
is to nullify
exempts the "continuing
argues
the exemption
tbat the effect
of such an
found in the provision
whieh
claims" from the release and not just the monetary
limit. To repeat, that portion of the provision states:
In such cases [where court access is granted], the Approval
Orders will exempt the continuing claims from the deemed
release .. "
[61]
In my view, the interpretation
nullify the exemption
entire continuing
from the release.
claim to be effective.
urged by the respondent
The exemption
the circumstances
are considered.
claimant
need not apply to the
Rather, there is nothing to prevent it
from being applied only to the determination
the wording of the exemption
does not
of actual income loss. Further,
needs to be broad, especially when all three of
wherein a claimant
This is especially
may be granted access to the courts
true for the third circumstance
can apply for access to the courts in another wrongful
where a
act claim
where the evidence required to address the alleged harms is so complex and
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extensive
that recourse
to the courts is the more appropriate
Tn my view, it is preferable
approach.
procedural
to adopt a flexible approach to the
application of the exemption.
The Language of the Provision
r621
The language of the provision
itself is subject to two competing
arguments.
[63]
The
"Resolution
respondent
argues
that
the
heading
of the
provision,
Processes within this lAP," indicates the intent for the parties to
remain within the lAP for the resolution of their continuing claims.
he argues that the description
of the claims as continuing
the intent that the claim be dealt with pursuant
Further,
is consistent with
to the lAP rather than by
instituting an entirely new action.
[64J
It is the respondent's
position that the introductory
description
of
what constitutes the TAP is found in subs. (i) of the provision which, for the
purpose of efficiency, Ireproduce again.
This lAP consists of a standard track, a complex issues track, and
a provision Ior access to the courts for the resolution of certain of
the continuing claims ....
l65]
The respondent
submits that the wording of the section allows for
two tracks and the access to courts provision
is part of the complex issues
track, which allows for court access to resolve anyone
of the three issues
identified in subs. (iii) of the provision, reproduced again below:
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At the request or a Claimant, access to the courts to resolve a
continuing claim may be granted by the Chief Adjudicator where
he or she is satisfied that:
• there is sufficient evidence that the claim is one where the
actual income loss Or consequential. loss of opportunity may
exceed the maximum permitted by this lAP;
•
there is sufficient evidence that the Claimant suffered
catastrophic physical harms such that compensation
available through (he courts may exceed the maximum
permitted by this lAP; or,
•
in an other wrongful act claim, the evidence required to
address the alleged harms is so complex and extensive that
recourse to the courts is the more appropriate procedural
approach.
1661
Canada asserts that the three situations
listed above support its argument
claim.
continuing
Specifically,
allowing
for court access
that the word "matter" refers to the entire
aside from loss of income, claimants can
gain access to the courts where they have suffered catastrophic
exceeds
the maximum
limit or where the evidence
harm that
to address the harm
alleged is so complex and extensive that recourse to the courts is the more
appropriate
procedural
two situations
approach.
demonstrates
Canada states that consideration
that the harm component
of these
of the continuing
claim is indivisible from the monetary loss.
[671
While I agree with Canada that the harm component overlaps with
the damages
suffered, I am not convinced that that means that the entire
continuing claim must be litigated in the usual fashion.
phrase "Resolution
At the very least, the
Processes within this lAP" calls into question the intent
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of the parties.
[68]
I. am aware that the above phrase is merely a heading
Agreement
and that art. 1,02
"headings
arc for convenience
construction
or interpretation
virtually replicated
the Agreement
of reference
specifically
provides
that
only and do not affect the
of this Agreement."
in other provisions
earlier stated, Schedule
Compensation
or
in the
However, the wording is
of the Agreement.
For example, as
D, Part lIl(a) "Core Assumptions
as to Legal and
Standards,"
subs.
0)
provides for release of the defendants
subject to the right to "resolve within this lAP their continuing claims,"
The Factual Matrix
[69]
Having examined the relevant provisions of the Agreement and the
provision in question, T turn to the surrounding
the tim.e the Agreement
explained the significance
was entered into.
circumstances
in existence at
In Moore Realty, Hamilton lA.
of considering such circumstances
(at para. 15):
Surrounding circumstances arc often important because, in the
real world, the task of ascertaining contractual intention can be
difficult as words do not have immutable or absolute meanings.
Rather, words often take their. meaning from a multitude of
contextual factors including the nature or the relationship created
by the agreement and the purpose of the agreement. ....
POI
She clarified (at para. 18):
It. is also important to remember that when determining the
or
intention of the parties, it is in the objective sense
a reasonable
person by reference to the surrounding circumstances at the time
of the signing of the contract. See Reardon Smith Line Ltd.
[[1976] 3 t\11 F.R. 570 (I1L.)], and MacMillan Bloedel Ltd. v.
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British Columbia Hydro and Power Authority (1992), 19
s.c.x.c.
[71]
215; 34 W.A.C. 215; 72 B.c'L.R. (2d) 273 (CA.).
In addition to evidence of the objective intention of the parties, the
factual matrix can also include evidence of the commercial
purpose of the
0f
contract, its aims and objectives and evidence of the nature or custom
market or industry in which the contract was executed.
[72]
the
See King at para. 72.
In this case, the Agreement is the result of months of negotiations
by experienced
and knowledgeable
counsel for all parties.
Having said that,
in my view, it is different than a typical commercial contract.
Although I
would not go so far as to find that it is a political agreement as was found by
Perell J. in Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014]
2 C.N.L.R. 86, it must be acknowledged
settlement of a tort-based class action.
significant
social,
emotional,
and
that it is something more than the
It is directly aimed at remedying the
physical
defendants that has left: a multi-generational
[73]
injustice
created
by
the
legacy of harm ..
The Agreement came about in response to the thousands of actions
and many class actions that had been filed against the defendants.
There is
no dispute that these actions would have taken many years to resolve in the
civil court process despite an alternative dispute resolution process that had
been implemented
by Canada. As
W~iS noted
in Semple (at para. 7):
.... One case took 16 years to wend its way (0 trial, appeal and
Court, The trial lasted 60 days. Another claim by
26 plaintiffs lasted six years from start to finish. The trial was
conducted in three segments a total of 108 days .....
the Supreme
2049482347
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[741
Furthermore,
the Agreement was negotiated
against the backdrop
of evidence that the potential class members were elderly and dying at a rate
of approximately
1,000 per yea.r (see Baxter at para 46).
Having said that, the resolution
[75]
of outstanding
litigation was not
the only goal. Other broad goals of the Agreement include the establishment
of the Truth and Reconciliation
commemoration.
and funding for healing and
Commission
In the big picture,
the Agreement
is a step toward
reconciliation.
Conclus ion
[761
After consideration
of the Agreement as a whole and the factual
matrix, T agree with the supervising judge that the provision is unclear.
ambiguous.
It is
That is, the term "matter" could be interpreted as encompassing
the entire continuing
claim or only the discrete issue in this case
or actual
income loss.
When considering
[77]
an ambiguous
term, Estey J., writing
for a
majority of the Supreme Court of Canada in Consolidated-Bathhurst Export
Ltd.
v.
Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888,
provided the. following guidance (at pp. 901-2):
Even apart from the doctrine of contra proferentem as it may be
appl ied in the construction
of contracts,
the normal
rules of
construction lead a court to search for an interpretation which,
from the whole of the contract, would appear to promote or
advance the true intent of the parties at the time of entry into the
contract. Consequently, literal meaning should not be applied
where to do so would bring about an unreal istic result or a result
which would not be contemplated in the commercial atmosphere
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in which the insurance was contracted. Where words may hear
two .9_QnsJ.!.1J£.tiQPSL
the more reasonable one, that which produces
a lair result, must certainly be taken as the interpretation wbich
would promote the intention of' the parties. Similarly, an
interpretation wh lch defeats the intentions of the parties and their
objective in entering into the commercial transaction in the first
place should be discarded in favour of an interpretation of the
policy which promotes a sensible commercial result. It is trite to
observe
that
an
interpretation
of an ambiguous
contractual
provision which would render the endeavour on the part of the
insured to obtain insurance protection nugatory, should be
avoided. Said another way, the courts should be loath 1.0 support
a construction which would either enable the insurer to pocket
the premium without risk or the insured to achieve a recovery
which could neither be sensibly sought nor anticipated at the time
of the contract.
Iemphasis
[78]
'rhus, in accordance
added]
with Consolidated-Bathurst, the provision will
be interpreted in a manner sueh that, of the two interpretations
more reasonable construction
be the interpretation
179]
advanced,
the
that produces a fair result will be considered to
that would promote the intention of the parties.
In my view, fairest result and the one that evidences the intent of
the parties is that the word "matter" as used in the phrase "the Approval
Orders will exempt the continuing claims
f1'0111
the deemed release, and
thereafter the matter shall be addressed by the courts" refers, in this case, to
the discrete matter of actual income loss and not the entire action or
continuing claim.
[80]
To interpret the provision in such a manner is consistent
with the
Agreement as a whole and the factual matrix. It is consistent with the goal
of dealing with all of the outstanding
residential
school
claims
in an
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inclusive, fair and efficient manner.
[81)
Reading
the Agreement
as a whole, the preamble
of the provision that I have adopted.
interpretation
the parties "desire a fair, comprehensive
of Indian Residential
Tt specifically
and lasting resolution
is consistent
states that
of the legacy
with the goal of the promotion
of
It is also consistent with para. G of the preamble which states
that the parties "agree to settle all pending individual
terms contained in this Agreement,
individuals
the
Schools" (at para. B). Perhaps even more important,
such an interpretation
reconciliation.
supports
who opt out."
actions
... upon the
save and except those actions brought by
Referring
an entire continuing
claim to the court
process is not consistent with an agreement to settle.
[82]
The interpretation,
Agreement
severable
1 have found, is consistent
with the entire
in that Schedule 0 treats actual income loss as a discrete issue,
from damages
opportunity losses.
based on consequential
or consequential
As was pointed out by the respondent,
Schedule 0, there are separate compensation
those categories.
harms
points award grids for each of
There is a grid allowing for conversion
points to dollar values.
in Part I of
There is no compensation
of compensation
points award grid for
actual income loss. Rather, the Agreement provides for the determination
proven actual income loss as follows:
Proven Actual Income loss
Where actual income losses arc proven pursuant to the standards
set within the complex issues track of this TAP, an adjudicator
may make all award for the amount of such proven loss up to a
maximum of $250,000 in addition to the amount determined
pursuant to the above grid, provided that compensation within
of
2049482347
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the grid is established without the allocation of points for
consequential loss or opportunity.
The amount awarded for
actual income loss shall be determined using the legal analyses
and amounts awarded in court decisions for like matters.
[83]
Support for such an interpretation can also be found in Appendix
IX to Schedule D entitled "Instructions
for Adjudicators."
For the standard
track, the instructions state:
.... Actual income loss claims constitute a distinct basis for
compensation within this lAP, and the standards for their
assessment do not apply to consequential loss of opportunity
claims.
The above is consistent
with the fact that a claim for actual income loss
cannot be made within the standard track.
[84]
Further,
it is consistent
with the language
used
in the lAP
indicating t.hat access to the courts is a resolution process within the TAP.
[85]
In my view, if accessing the courts pursuant to the provision meant
that the entire lAP process no longer applied at all, that would have been
clearly set out in the Agreement.
Certainly, where the Agreement
intends to
deny access to i.ts provisions, it clearly states so. For example, paras. I.2 and
15 of the Approval
Agreement,
Order issued in Manitoba
incorporate
art. 4.06 of the
which provides (at subart, (i):
Approval Orders will be sought:
(i)
ordering and declaring that notwithstanding Section
4.06(c), (d) and (f), a Class Member who 011 or after the
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tilth anniversary of the Implementation
Date had never
commenced an action other than a class action in relation
to an Indian Residential School ... may commence an
action for any of the Continuing Claims within the
jurisdiction
of the court in which the action is
commenced.
F9,_L"gr§at~J certainty, the rules, procedures
!!lliL_.standards of the lAP are not ap.m:i..9llple to such
actions.
[emphasis added]
(86'1
Further, such an interpretation
surrounding
the Agreement,
is consistent with the circumstances
the goal of resolving
school claims in an expeditious
manner
outstanding
residential
and the goals of healing
and
reconciliation.
[R7]
Finally, in accordance
sensible.
That is, access to the courts is not used to deny the respondent the
benefits of the JAP.
However,
with Consolidated-Bathhurst,
the respondent
the result is
must still meet all of the
standards required to prove his continuing claim pursuant to the JAP and his
actual income loss to the court. This is a balanced response that respects the
terms of the Agreement.
[88]
Therefore, in my view, the supervising judge did not err in finding
that the provision lacked clarity and in adopting the interpretation
that he
did.
[89]
1 note that Canada pointed out that the application
proferentem rule is specifically
Contra proferentem
prohibited
of the contra
by art. 1.04 of the Agreement.
is a rule developed in the context of the interpretation
of
insurance contracts and generally provides that, in the event that the "court is
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unable to resolve a contradiction
language
or
or ambiguity in the terms of a contract, the
the contract will be construed against its author" (Scanlon at
p. 771). To be clear, the conclusion I have reached is
application
of the
contra
proferentem
rule.
110t
as a result of the
Rather,
as stated in
Consolidated-Bathurst, it results from the normal rules of construction to an
interpretation which promotes the «true intent of the parties at the time of
entry into the contract" (at p. 901).
[90]
T would just add one further comment.
In his decision giving
direction, the supervising judge relied on the understanding of Veale J. in the
settlement approval decision in Fontaine 2006 to bolster his conclusion that
it is the income issue that is referred to the courts. In my view, the comment
that he relied on, reproduced earlier, was one that was made in the context of
a different issue, without considered analysis, and J would not read as much
into Veale L's words as did the supervising judge.
Issue 2: Did the supervising judge err in applying the concept of access to
justice as an interpretive principle?
[91]
J agree with Canada that the supervising judge should not have
relied on the Cromwell Report to hold that "[ilf a creative solution can be
found which respects the ... Agreement and enhances access to justice, that
solution should be preferred"
(at para. 21).
This case involves the
interpretation of a contract and the intention of the parties at the time the
contract was made.
The Cromwell Report did not exist at the time the
contract was entered into and played no part in the Agreement.
However,
despite this error by the supervising judge, as is evidenced by the Agreement
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itself and the factual matrix, the concept of access to justice was clearly one
of the goals of the Agreement.
in. my view, nothing turns on this
Therefore,
en-or.
Issue 3: Did the supervising
manner that is unworkable
judge err in interpreting
and incompatible
the provision
with and unsupported
in a
by the
TAP?
Positions of the Parties
1"921
Canada argues that the Approval
Order made by the supervising
judge creates a bi furcated process that is not procedurally
supported
by the
lAP. That is, when access to the courts is granted, the lAP does not speak to
issues such as standards
of causation,
when expert evidence
how findings are to be reviewed and by whom.
of the Agreement,
Canada relics on art. 18.06
which provides that it constitutes
between the parties.
is adducible,
the entire Agreement
It argues that had it been intended that a claimant who
chose the court process could remain
benefits, the Agreement
within the lAP and enjoy all
or
its
itself would have provided the appropriate process
to be applied and provision tor review.
Tt argues that to read in a bifurcated
process such as was done by the supervising judge is contrary to art. 18.06.
f93-1
Next,
Canada
maintains
that to apply
the review
provisions
currently existing in the TAP results in an absurdity which would a.llow an
adjudicator
the ability to review the court's finding.
Additionally,
Canada
argues that the order by the supervising judge results in an absurdity insofar
as it directs a judge
to give deference
contrary to s. 96 of the Constitution Act.
to the findings of an adjudicator,
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1941
Finally,
Canada
satisfy the "hut for" test
would
overlap
duplicative
[95]
with
argues that some evidence
ill
that
the determination
provided
The respondent
to
of income loss. Such evidence
to the
and could result in inconsistent
will he required
adjudicator
would
and
be
findings.
argues that Canada is overcomplicating
the issue.
It is his position that the supervising judge was correct when he ordered that
the
adjudicator
compensation
would
or the
Therefore,
a judgment
and
what
for actual income loss
of actual income
would not be entered.
who would then incorporate
The respondent
issues
occurred
Rather,
the
total amount of actual income loss would be referred
back to the adjudicator,
the complex
abuse
by the court. After the determination
loss by the trial judge,
196.1
whether
is owed pursuant to the lAP. Damages
would be determined
determination
determine
it into his decision.
submits that a.s access to courts is simply part of
track, the provisions
of the TAP continue
the final decision of the adjudicator
incorporating
to apply.
the decision of
the trial judge is subject to the review process outlined in Schedule D, Part 1
of the Agreement.
That is, [or complex
claimant and the defendants
issues track claims,
both the
can ask for review by the chief adjudicator
his designate on the basis of palpable and overriding
error.
or
Finally, relying
on the decision of Fontaine et al. v. Canada (Attorney General) et al., 2012
ONCA 471, 295 O.A.C. 127 (Fontaine 2012), the respondent
decision of the chief adjudicator
is not reviewable
asserts that the
by the courts short of a
request for direction where it is alleged that the chief adjudicator's
decision
reflects
and
a failure
implementation
to enforce
orders.
conditions
of the
Agreement
the
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Analysis and Conclusion
IY71
Contrary to Canada's
interpretation
argument that the TAP does not support the
of the provision that 1 have endorsed, 1 see no problem with
the fact that the lAP does not speak to Issues such as causation, and other
standards to be applied by the courts. In my view, those issues are dealt with
by subs. (iii) of the provision
addressed
by the courts
processes."
This
determination
is
wherein i.t states that "the matter shall be
according
also
to their own standards,
consistent
with
the
rules and
supervising
judge's
that the lAP applies except where it is inconsistent
with the
court's standards, rules and processes.
[98J
The supervising
ensuing court proceeding,
to the decision
judge's
order provided
a direction
that in the
to the extent possible, deference should be applied
of the adjudicator's
factual
determinations.
However,
contrary to Canada's argument, it is not absurd for a court to give deference
to factual findings made by a finder or fact. It must be remembered
adjudicators
are chosen on the basis of specialized
that the
criteria and have legal,
cultural and historical expertise in the subject matter at hand.
1991
Agreement
While an adjudicator
chosen
is not an administrative
pursuant
deference.
tribunal.
in the
tribuna.l, in my view, a useful analogy
can be drawn between factual determinations
an administrative
to the criteria
of an adjudicator and those of
That is, they are to be approached
with
In Alberta (fnjhrmalion and Privacy Commissioner) v. Alberta
Teachers' Association, 2011
see 61,
[2011] 3 S.C.R. 654, Rothstein J..,
neatly summarized the concept as follows (at para. 1):
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Through
the creation
of administrative
tribunals,
legislatures
confer decision-making authority on certain matters to decision
makers who are assumed to have specialized expertise with the
assigned subject matter. Courts owe deference to administrative
decisions within the area of decision-making
authority conferred
to such tribunals. . ...
In Sattva Rothstein J. considered certain analogies between judicial
[100]
review of administrative
awards.
tribunal
decisions
and appeals
of arbitration
He observed (at para. 105):
Nevertheless, judicial review of administrative tribunal decisions
and appeals of arbitration awards are analogous in some respects.
Both involve a court reviewing the decision or a non-judicial
decision-maker.
Additionally, as expertise is a factor in judicial
review, it is a factor in commercial arbitrations:
wlu:re parties
choose their own decision-maker. JL!Jl!!Y be presumed that such
decision-makers are chosen either based on their expertise in the
area which is the subject of dispute or are otherwise qualiJied in a
manncr that is acceptable
to the parties. For these reasons,
aspects of the Dunsmuir [2008 see 9, [2008J I S.C.R. 190J
framework are helpful in determining the appropriate standard of
review to apply in the case of commercial arbitration awards.
[emphasis
[101
J
The Agreement
added]
has provided for specialized
expertise in the assigned subject matter.
adjudicator
the evidence
highly specialized;
decision-makers
Furthermore,
with
not only is an
he or she will have had the benefit of hearing
in a com fortable setting at a location chosen by the claimant
with a support person and cultural ceremony, should the claimant so choose.
In my view, in light of the goals of access to justice,
healing
inherent
in the Agreement,
provision of such evidence.
cultural respect and
this is the preferable
way for the
It has the ability to provide insight in a manner
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not possible
in the confines
provide that the adjudicator's
of a courtroom.
Thus, it was not an error to
factual determinations
are to be approached
with deference "[t]o the extent possible" (at para. 51).
[102]
The supervising
judge ordered
that, in determining
damages
for
actual loss of income, the court will employ the "but for" test. In my view,
this direction was premature.
for causation,
While 1 agree that the "but for" test. is the t.est
in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181,
the Supreme Court of Canada recognized
for" test will not apply.
that, in exceptional cases, the "but
In those instances, proof of factual causation can be
replaced
by proof of material contribution
injury.
In explaining
the law, Mcl.achlin
to the risk that gave rise to the
C.J.e. wrote on behalf of the
majority (at para. 46):
The foregoing discussion leads me to the following conclusions
as to the present state of the law in Canada:
(1)
As a general
rule, a plaintiff' cannot succeed
unless she
shows as a matter of fact that she would not have suffered
the loss "hut for" the negligent aet or acts of the defendant.
A trial judge is to take a robust and pragmatic approach to
determining
if a plaintiff has established that the
defendant's negligence caused her loss. Scientific proof of
causation is not required.
(2)
a plaintiff may succeed by showing that the
conduct. materially contributed to risk of the
plaintiffs injury, where (a) the plaintiff has established that
her loss would not have occurred "but for" the ncgl igcncc of
two or more tortfeasors, each possibly in fact responsible
for the loss; and (b) the plaintiff, through no fault of her
own, is unable to show that anyone
of the possible
Exceptionally,
defendant's
tortfeasors in fact was the necessary or "but for" cause or
her injury, because each can. point to one another as the
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possible "but for" cause of the injury, defeating a finding of
causation on a balance of probabilities against anyone.
(103]
Tn other words,
the determination
of the test to be applied
is
dependent on the faets alleged, the nature of harm claimed and the nature of
the loss.
alcoholism
In this case, we know the claimant alleges that, as a result of the
he suffered
which was grounded
in the sexual
and physical
assaults to which he was subject while residing in residential schools, he was
unable to maintain employment.
Tn my view, a determination
of the test to
be applied is one which should be made by the judge conducting
of the issue with full knowledge
the hearing
of all of the facts and their intricacies.
Therefore, I would not sustain this aspect of the order.
[104]
The trial. judge also erred in his direction
after the court determined
the parties intended
that
the two issues of actual income loss and whether
to allow a claim for lost pension
court's assessment of actual income loss, a judgment
the court records.
when he provided
to be included
would not be entered in
Such an order is contrary to the Agreement
have earlier stated, provides that "the matter shall be addressed
according
to their own standards,
judgment
is not in accordance
rules and processes."
with the standards,
in a
which, as I
by the courts
Failure to enter a
rules and processes of the
court.
I: 105]
The
judgment
would not be entered into the court record was directed to the issue
of' review
or that
intent
underlying
decision.
the
supervising
judge's
order
The objective being that the judgment,
a court order, would not be appealable
in the usual manner.
that
a
not being
Rather, it would
2049482347
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be reviewable within the terms of the Agreement. The issue of review of a
decision made by the court after access has been granted pursuant to the
provision is not directly before this court. That is, it is not part of the request
for direction, but rather, a possible consequence of the direction. The issue
of review only arises in the event that one of the parties is dissatisfied with
the damages ordered by the court for actual income loss or the determination
of the intent of the parties to allow a claim for pension loss in the assessment
of the income loss claim.
issue in this proceeding.
It is unnecessary and premature to decide that
If and when the issue of review arises, it can be
decided through the usual process. Thus, J would not uphold this aspect of
the supervising judge's order.
[106]
Aside from the above two errors, I conclude that the supervising
judge did not err in interpreting the provision in a manner that is unworkable
and incompatible with and unsupported by the .lAP.
POTI
In light of all of the above, aside from his reliance on the Cromwell
Report, the supervising judge did not err in his interpretation
Agreement.
of the
Except for the direction that the judge hearing the actual
income loss claim employ the "but for" test, and the direction that a
judgment made by a court pursuant to the provision not be entered in the
court records, the supervising judge did not err in the resultant direction.
1108 J
Therefore, T would allow the appeal only to remove the two
directions that 1have outlined above. In all other respects, 1would dismiss
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the appeal.
[109]
The respondent
asked for an opportunity
should he be successful in this appeal.
Canada
to argue quantum of costs
Pursuant to that request, both he and
may file written submissions.
Included
in the submissions
the
parties should address the issue of which jurisdiction's laws the court should
apply in reaching its conclusion.
The parties are to contact the registrar for
further direction.
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