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Court File No.: T-1621-19 FEDERAL COURT BETWEEN Court File No.: T-1621-19 FEDERAL COURT BETWEEN: ATTORNEY GENERAL OF CANADA Applicant (Moving Party) -and- FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA, ASSEMBLY OF FIRST NATIONS, CANADIAN HUMAN RIGHTS COMMISSION, CHIEF OF ONTARIO, AMNESTY INTERVNATIONAL and NISHNAWBE ASKI NATION Respondents (Responding Parties) MOTION RECORD OF THE RESPONDENT, CANADIAN HUMAN RIGHTS COMMISSION in response to the Applicant’s Motion for Stay of Order (as per the Directions by the Court of October 25, 2019) Brian Smith and Jessica Walsh Legal Services Division Canadian Human Rights Commission 344 Slater Street, 8th Floor Ottawa, ON K1A 1E1 Tel: (613) 943-9205 / 943-9134 Fax: (613) 993-3089 Email: [email protected] [email protected] Counsel for the Respondent, Canadian Human Rights Commission TO: The Administrator Federal Court Thomas D’Arcy McGee Building 90 Sparks Street, 5th Floor Ottawa, ON K1A 0H9 AND TO: Rob Frater, Tara DiBenedetto and Max Binnie Department of Justice Canada Civil Litigation Section 50 O’Connor Street, Suite 500 Ottawa, ON K1A 0H8 Tel: 613-670-6289 / 613-670-6270 / 613-670-6283 Fax: 613-954-1920 Email: [email protected] [email protected] [email protected] Counsel for the Applicant / Moving Party, Attorney General of Canada AND TO: David Taylor Conway Baxter Wilson LLP Suite 400 – 411 Roosevelt Avenue Ottawa, ON K2A 3X9 Tel: 613-619-0368 Fax: 613-688-0271 Email: [email protected] Sarah Clarke Clarke Child & Family Law Suite 950- 36 Toronto Street Toronto, ON M5C 2C5 Tel: 416-260-3030 Fax: (647) 689-3286 Email: [email protected] Counsel for First Nations Child and Family Caring Society of Canada AND TO: David C. Nahwegahbow and Thomas Milne Nahwegahbow Corbiere Barristers and Solicitors 5884 Rama Road, Suite 109 Rama, ON L3V 6H6 Tel : 705-325-0520 Fax : 705-325-7402 Email : [email protected] [email protected] Stuart Wuttke Assembly of First Nations 55 Metcalfe Street, Suite 1600 Ottawa, ON K1P 6L5 Tel: 613-241-6789 ext 228 Fax: (613) 241-5808 Email: [email protected] Counsel for Assembly of First Nations AND TO: Maggie Wente and Sinéad Dearman Olthuis Kleer Townshend LLP 250 University Avenue, 8th Floor Toronto, ON M5H 3E5 Tel: 416-981-9330 Fax: 416-981-9350 Email: [email protected] [email protected] Counsel for Chiefs of Ontario AND TO: Justin Safayeni Stockwoods LLP TD North Tower 77 King Street West, Suite 4130 Toronto, ON M5K 1H1 Tel: 416-593-3494 Fax: 416-593-9345 Email: [email protected] Counsel for Amnesty International AND TO: Julian Falconer and Molly Churchill Falconers LLP 10 Alcorn Avenue, Suite 204 Toronto, ON M4V 3A9 Tel: 416-964-0495 ext. 222 Fax: 416-929-8179 Email: [email protected] [email protected] Counsel for Nishnawbe Aski Nation Table of Contents TAB Page 1. Transcript, Cross-Examination of Sony Perron, November 14, 2019, pages 14-29, 43-46 ............................................................................................................. 0001 2. Written Representations ................................................................................. 0023 Authorities 3. Belzberg v. Canada (Commissioner of Patents), [2009] F.C.J. No. 1197 ...... 0035 4. Canadian Council for Refugees v. Canada, [2008] F.C. J. No. 131................ 0041 5. Jane Doe v. Attorney General of Canada, 2018 FCA 183 .............................. 0053 6. Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 .. ............................................................................................................. 0063 7. Nadarajah v. Canada (Citizenship and Immigration), 2018 CanLII 58459 ...... 0094 8. Public Service Alliance of Canada v. Canada Post Corporation, 2010 FCA 56 ..... ............................................................................................................. 0097 9. Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 .......................... 0167 TAB 1 001 Court File No. T-1621-19 FEDERAL COURT BETWEEN: ATTORNEY GENERAL OF CANADA Applicant - and - FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA, ASSEMBLY OF FIRST NATIONS, CANADIAN HUMAN RIGHTS COMMISSION, CHIEFS OF ONTARIO, AMNESTY INTERNATIONAL and NISHNAWBE ASKI NATION Respondents CROSS-EXAMINATION OF SONY PERRON on his affidavit sworn October 3, 2019, held at the offices of ASAP Reporting Services Inc., 100 Queen Street, Suite 940, Ottawa, Ontario, on Thursday, November 14, 2019, at 10:00 a.m. APPEARANCES: Mr. Robert Frater, Q.C. on behalf of the Applicant Mr. Max Binnie Mr. David P. Taylor on behalf of the Respondent/ Ms. Barbara McIsaac First Nations Child and Family Caring Society of Canada Mr. Stuart Wuttke on behalf of the Respondent/ Mr. Thomas Milne Assembly of First Nations Ms. Jessica Walsh on behalf of the Respondent/ Canadian Human Rights Commission Ms. Sinéad Dearman on behalf of the Respondent/ Chiefs of Ontario Ms. Molly Churchill on behalf of the Respondent/ Nishnawbe Aski Nation A.S.A.P. Reporting Services Inc. © 2019 940-100 Queen Street 900-333 Bay Street Ottawa, Ontario K1P 1J9 Toronto, Ontario M5H 2R2 (613) 564-2727 (416) 861-8720 002 Court File No. T-1621-19 CROSS-EXAMINATION OF SONY PERRON November 14, 2019 INDEX PAGE SWORN: SONY PERRON 3 EXAMINATION BY MS. McISAAC 3 EXAMINATION BY MR. WUTTKE 35 Page 2 A.S.A.P. Reporting Services Inc. (613) 564-2727 (416) 861-8720 003 Court File No. T-1621-19 CROSS-EXAMINATION OF SONY PERRON November 14, 2019 1 to work toward providing the right services to 2 children and family. 3 31 Q. In the future? 4 A. In the future. 5 32 Q. What steps have been 6 taken to deal with the issues of the past 7 discrimination, should Cabinet and the ministers 8 instruct you to move forward on the basis of 9 compensation? 10 A. Sorry. Can you repeat 11 the question? 12 33 Q. All right. If the 13 ministers and/or Cabinet instruct you to proceed 14 with some kind of compensation, what steps have 15 you taken to date in anticipation of those 16 instructions? 17 A. As I said before, we have 18 reviewed the September 6th decision, what are the 19 specific orders in terms of who need to be 20 compensated according to the order. We have done 21 an assessment of what might be the financial 22 application of that, and there is some detail 23 about that in my affidavit. 24 And we have identified the 25 information that we have in the department about Page 14 A.S.A.P. Reporting Services Inc. (613) 564-2727 (416) 861-8720 004 Court File No. T-1621-19 CROSS-EXAMINATION OF SONY PERRON November 14, 2019 1 how it will proceed. We have to look also, and 2 this is described in my affidavit, about the other 3 example of broad compensation that happened in 4 recent past, and how they have operated. There 5 are various models. So this is the kind of work 6 we have done so far. 7 34 Q. All right, in 8 anticipation of instructions you might receive? 9 A. In anticipation that we 10 have a Tribunal order that gives us specific 11 action to take, and our job is to assess how this 12 could be made possible. 13 35 Q. Now, in paragraph 5 of 14 your affidavit, you say that the Tribunal ordered 15 Canada to pay this maximum, you are referring to 16 the $40,000, to a number of categories of 17 individual. But you will agree with me that 18 Canada is not required to pay anything until the 19 Tribunal issues an order with regard to a 20 compensation process, correct? 21 A. The Tribunal order from 22 September 6th indicated that the Tribunal will 23 rule after a future submission from the parties on 24 the process, and this is probably at the time 25 where we would get some specific instruction about Page 15 A.S.A.P. Reporting Services Inc. (613) 564-2727 (416) 861-8720 005 Court File No. T-1621-19 CROSS-EXAMINATION OF SONY PERRON November 14, 2019 1 how this should go about. In the past, however, 2 there has been orders where the Tribunal was very 3 precise in terms of date and these timeline were 4 really, really short. So I cannot presume where 5 the Tribunal would go, but this is where we would 6 know more about how this would proceed. 7 36 Q. Right. But you will 8 agree with me that no money actually has to be 9 paid out to anybody until the compensation process 10 has been either agreed on by the parties or 11 ordered by the Tribunal. 12 A. There is no payments that 13 are required at this time until we have a future 14 ruling from the CHRT based on the September 6th 15 decision. 16 37 Q. Now, in paragraph 5(a), 17 you refer to one of the categories of individuals 18 who are entitled to compensation as being: 19 "First Nations children 20 living on reserve and in 21 the Yukon who were 22 removed from their 23 families or communities, 24 necessarily or 25 unnecessarily." Page 16 A.S.A.P. Reporting Services Inc. (613) 564-2727 (416) 861-8720 006 Court File No. T-1621-19 CROSS-EXAMINATION OF SONY PERRON November 14, 2019 1 Could I get you to take a look 2 at paragraph 249 of the actual Tribunal decision? 3 Do you have that? I notice, actually, it's not in 4 your motion record, Mr. Frater. 5 A. I do not have a copy of 6 the order. Thank you. 249? 7 38 Q. 249, please. Take a look 8 at that, and then I will ask my question. 9 A. Okay. 10 39 Q. Now if you want to go 11 back to the beginning of that paragraph, in my 12 version it's the bottom of page 83 of the 13 decision.
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