Ontario Court Of Appeal Summaries (October 15 – 19, 2018)

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

All the decisions this week were procedural in nature. One of those was yet another decision in Fontaine v Canada, the Residential School Settlement case, with

CIVIL DECISIONS

Fontaine v. Canada, 2018 ONCA 832

[Sharpe J.A. (In Chambers)]

Counsel:

A. Faith and S. Lockhart, for the moving party

C. Coughlan and B. Thompson, for the responding party, The Attorney General of Canada

Keywords: Civil Procedure, Appeals, Jurisdiction, Class Proceedings, Residential School Settlement, Orders, Stay Pending Appeal, Functus Officio, Administrative Law, Procedural Fairness, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, Manos Foods International Inc. v Coca-Cola Ltd. (1999), 180 DLR (4th) 309 (Ont. C.A.)

Facts:

On September 5, 2018, the Eastern Administrative Judge for the Indian Residential School Settlement Agreement ("IRSSA"), on his own motion and without notice to any party, issued a Direction (the "First Direction") prohibiting the Chief Adjudicator for the Independent Assessment Process ("IAP") from continuing his participation in three appeals, one of which was to be argued before the Supreme Court of Canada on October 10, 2018. The Chief Adjudicator filed a Notice of Appeal against the First Direction and moved for a stay pending the hearing of the appeal, which was granted by the Ontario Court of Appeal on September 12, 2018. The Court of Appeal further directed the appeal against the First Direction be heard on November 23, 2018.

On September 27, 2018, the Eastern Administrative Judge issued, on his own motion and without notice to any party, a Second Direction (the "Second Direction") which rescinded the First Direction. The Second Direction also appointed an amicus curiae and directed him to bring a Request for Direction ("RFD") on five issues concerning the Chief Adjudicator which motivated the First Decision before two other supervising judges from the Supreme Court of Yukon and Superior Court of Quebec respectively. The Chief Adjudicator filed a Notice of Appeal against the Second Direction, moving for a stay pending the determination of the appeal and asking that the second appeal be heard at the same time as the appeal from the First Direction.

Issues:

(1) Should a stay pending determination of the appeal be granted and the second appeal heard at the same time as the first appeal?

Holding:

Motion granted.

Reasoning:

(1) Yes. The interests of justice favour granting a stay and ordering the second appeal to be heard with the appeal from the First Direction. First, the Second Direction is a final order from which an appeal lies to the Ontario Court of Appeal because it has the effect of ending the appeal from the First Direction, since the Chief Adjudicator cannot appeal from an order that is no longer in effect. The Second Direction therefore removes some of the issues raised in that appeal to another tribunal outside the jurisdiction of the Ontario courts. As per Manos Foods International Inc. v Coca-Cola Ltd. (1999), 180 DLR (4th) 309 (Ont. C.A.), an order that finally determines the forum for a dispute is a final order for the purposes of appeal even though substantive issues remain to be determined by the court or tribunal held to have jurisdiction.

Secondly, there were serious issues to be tried because the Second Direction was made without notice or a hearing, making it arguable that it was made in violation of the principles of procedural fairness. It was unprecedented for a judge to purport to rescind an order after it was made, appealed, and stayed. It was arguable that the Second Direction was issued in violation of the functus officio principle, which is meant to allow finality of judgments from courts which are subject to appeal. As per the Supreme Court of Canada decision in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 79, allowing a court appealed from to vary its orders would allow...