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Court File No. 00-CV-192059CP ONTARIO Court File No. 00-CV-192059CP ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: 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 -and- 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 ATHBASKA, 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 MONTREAL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARITE 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 ARCHIEPISCOPALE 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, EPISCOPAL CORPORATION OF SASKATOON,OMILACOMBE CANADA INC. and MT. ANGEL ABBEY INC. Defendants REPLY SUBMISSIONS OF THE TRUTH AND RECONCILIATION COMMISSION OF CANADA Dated: November 24, 2015 Falconers LLP Barristers-at-Law 10 Alcorn Avenue, Suite 204 Toronto, ON M4V 3A9 Julian N. Falconer (LSUC 29465R) Tel: (416) 964-0495 Fax: (416) 929-8179 Lawyers for the Commission 2 1. These submissions are made by way of reply to those of Independent Counsel (hereafter “IC”), arising from the IC’s written examination of Tom McMahon. In particular, these submissions address IC’s proposed additions to the draft order jointly proposed by the Commission and Canada. 2. The Commission respectfully submits that IC’s proposed additions to the draft order address matters outside the scope of this RFD, are unnecessary, and are inapplicable to the documents in issue. The Commission submits as follows: IC’s proposed additions to the draft order address matters outside the scope of the RFD 3. In its submissions, IC takes issue with the privacy and confidentiality protections in respect of documents produced to the Commission once they are in the hands of the “NCTR or any other archive”.1 Among other things, IC is critical of the ability of the administrative agreement between the Commission and the University of Manitoba and the National Centre for Truth and Reconciliation Act (hereafter the “NCTR Act”) to protect documents housed in the NCTR from inappropriate public disclosure. 4. The Commission respectfully submits that this Honourable Court has already ruled that the scope of the RFD herein is restricted to the Commission’s document collection mandate, and not the ultimate disposition of records housed by the NCTR. In denying standing to the NCTR, this Court held that the NCTR did “not have a stake in the RFD”, and that 1 Factum of Independent Counsel, page.11 para. 1 “Order Sought” 3 evidence concerning the “privacy laws, structure, policies and practices” designed to protect the records held by the NCTR was not required to adjudicate this matter. [26] As should be clear from my reasons above, I do not agree that the NCTR has a direct interest in or will be adversely affected by judgment in the Commission’s RFD any more than it would if the Commission’s mandate was extended into perpetuity. There is nothing to suggest that the RFD implicates the NCTR’s mandate as a repository and archive. [27] Moreover, to be granted intervener status, the NCTR must demonstrate that the court’s ability to determine the issues before it would be enhanced by the intervention.[5] It must be able to offer something more than a repetition of the Commission’s evidence and argument. In this case, the NCTR has failed to meet that burden. It does not provide any example of evidence it could offer that could not be adduced by the Commission itself. [28] Finally, I agree with Canada that this case is distinguishable from the June 2014 Decision where the NCTR was granted full party status (i.e. Fontaine v. Canada (Attorney General), 2014 ONSC 3781 (CanLII)). [29] The June 2014 Decision pertained to the ultimate disposition of IAP records after the IAP is complete. As the ultimate repository for records under Schedule “N”, there was a possibility that the records would be sent to the NCTR if they were not ordered to be destroyed. The NCTR sought standing to be added as a party, arguing that its participation would assist the court because it could adduce evidence about the privacy laws, structures, policies and processes to protect the IAP records if they were archived with it. The NCTR argued that this evidence would show that it would serve as the most appropriate archive for the records. [30] In that case, as the ultimate repository for documents pertaining to the IRS legacy, the NCTR clearly had an interest in the subject matter of the proceeding because the proceeding was directly focused on the ultimate disposition of such records. Moreover, there was a real possibility that the RFD would impose obligations on the NCTR. As I have already said, in this case, the RFD does not concern the ultimate disposition of records. It is concerned with the Commission’s mandate to collect records and the obligations on Canada and the churches to produce records to the Commission. Thus, the NCTR does not have a stake in the RFD, nor is it likely that the RFD will impose any obligations on the NCTR that extend beyond the NCTR’s existing mandate.2 [emphasis added] 2 Fontaine v Canada (Attorney General), 2015 ONSC 5522 (CanLII), at paras. 26-30 4 5. Respectfully, IC’s submissions represent a thinly veiled effort to expand the scope of this RFD beyond the boundaries that have already been prescribed by this Court. If IC requires judicial guidance concerning the adequacy of privacy protection at the NCTR, IC should bring its own RFD based on a proper factual record and with the necessary parties (including the NCTR) before the Court.
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