Larry Philip Fontaine, et al. v The Attorney General of Canada, et al.
Ontario Superior Court of Justice
2014 ONSC 283
14 January 2014
Between the 1860s and 1990s more than 150,000 First Nations, Inuit and Métis children were required to attend assimilationist Indian Residential Schools operated by religious organisations under the funding of the Canadian federal government. Many students were the victims of emotional, physical and sexual abuse. During the 1990s, former students brought individual and class actions seeking compensation for injuries suffered. In 2006, the Indian Residential Schools Settlement Agreement (the IRSSA) enabled former students to bring claims for compensation under the Independent Assessment Process (IAP) and established the Truth and Reconciliation Commission of Canada to build a complete and accurate historical record of the Indian Residential Schools system. Some of “the most egregious incidents of abuse” of the Indian Residential Schools system occurred at St. Anne’s Indian Residential School in Fort Albany, Ontario, including the use of an electric chair to shock students as young as six years old, and staff forcing ill students to eat their own vomit in front of their peers. The Ontario Provincial Police (OPP) conducted a criminal investigation into the crimes perpetrated against St. Anne’s students between 1992 and 1996. As a result of defending numerous civil actions from St. Anne’s claimants during the 2000s, the Canadian government came to possess documents from the OPP investigation.
The Commission and various claimants under the IAP brought a suit to compel the production of these documents from the Canadian government and the Ontario Provincial Police (the OPP).
Issue and Resolution:
Production and disclosure of documents gathered in police investigations relating to child abuse. The Court held that under the terms of the IRSSA, the documents should be produced by the government and by the OPP directly.
Canada opposed producing the documents to the Commission under Rule 30.1 of Ontario’s Rules of Civil Procedure, the “deemed undertaking” rule, and opposed producing the documents to the St. Anne’s claimants based on a claim that the IRSSA did not make it responsible for producing third party documents like those of the OPP.
Deemed undertaking rule.
The deemed undertaking rule requires that evidence compelled to be produced by a party in a proceeding, can only be used for the purpose of the proceeding in which it was obtained. The Court disagreed that the current IAP proceedings were separate from those of the early 2000s and instead accepted the Commission’s argument that the IAP claims under the IRSSA were merely a culmination of the earlier proceedings, and the earlier proceedings were included in, or were the same as, the IAP claims. The Court found no evidence that the class action complainants in the earlier St. Anne’s actions had opted out of the IRSSA, and concluded that those complainants’ earlier cases were overtaken by participating in the IRSSA as IAP claimants. Alternatively, the Court concluded that even if the rule applied, the documents should still be produced by virtue of the public interest exception to the rule, because the public interest in disclosing the OPP documents to facilitate the important mission of the Commission outweighed the public interest supported by the rule.
Production of third party documents.
The Court reasoned that Canada’s objection to being made responsible for producing third party documents was misdirected, since the St. Anne’s claimants were only seeking OPP documents and transcripts already in Canada’s possession. The OPP did not oppose producing its documents, but sought a court order with appropriate protections for privilege and privacy claims. The Court ordered that the OPP produce the documents directly, concluding that the OPP’s privilege and privacy concerns would be adequately handled by following the procedures already in place under the IRSSA for the production of documents.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.