Court File No. 00-CV-192059 ONTARIO SUPERIOR COURT OF JUSTICE BET'WEEN: 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.' EiIIAU 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 CIIURCH 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 ATHABASCA, 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 SYNOD OF THE QU'APPELLE, THE SYNOD OF THE DIOCESE OF NEW WESTMINISTER, THE rJTocEsE 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 JESUSMARIE, 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 CORPORA'I'ION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES RAY), THE CATHOLIC DIOCESE OF MOOSONEE, SOEURS GRISES DE MONTRÉAL/GREY NUNS OF MONTREAL, SISTERS OF CHARTTv (cREy NUNS) oF ALBERTA, LES SOEURS DE LA CuanIrÉ 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 CORIORATION EpISCOPALE CATHOLIQUE ROMAINE DE GROUARD, ROMAN CATHOLIC EPISCOPAL CORPORATION OF KEEWATIN, LA CORPORATION ARCHÉPISCOPALE 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 MACKENZIEFORT SMITH, THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF PRINCE RUPERT, EPISCOPAL CORPORATION OF SASKATOON, OMI LACOMBE CANADA INC, ANd MT. ANGEL ABBEY INC. Defendants Proceedings under the Class Proceedings Act,1992, S.O' 1992' C'6 FACTUM OF INDEPENDENT COUNSEL Table of Contents I. SUMMARY OF ARGUMENT"....... 1 II. THE FACTS . 1 A. Privacy Provisions in Schedule N of the Settlement Agreement 2 B. The Anangements with the University of Manitob4............... 4 C. The National Centre for Truth and Reconciliation Act 6 D. The Harms Resulting if Personal or ldentif,ing Information is Made Publicly Accessible 7 m. ARGUMENT.............. 8 A. The Settlement Agreement Protects Individual Privacy Interests 8 B. No One is Protecting Individual Privacy Interests 9 IV ORDER SOUGHT. 11 1 I. SUMMARY OF ARGUMENT 1. Due to the extreme sensitivity of much of the subject matter of Indian Residential Schools, all parties to the Indian Residential School Settlement Agreement (IRSSA") were concerned at the time of the negotiation of the IRSSA that individual privacy interests were to be respected and protected. 2. The Truth and Reconciliation Commission ("the TRC") seeks to obtain documents from Canada and various church entities pursuant to section 11 of Schedule N of the IRSSA. Independent Counsel does not oppose the transfer of such documents to the TRC providing that the privacy protections agreed to by all Parties to the Settlement Agreement and ordered by the nine Courts who approved the Settlement Agreement are made binding conditions of the transfer or release of any such documents. 3. The TRC proposes to archive these documents with the National Centre for Truth and Reconciliation ("the NCTR"). The legislation governing the NCTR does not preserve the confidentiality of these documents .in accordance with the terms of the IRSSA and does not ensure that individual privacy interests will be protected. The only protection against the possibility of disclosure contrary to the terms of the IRSSA, including "proactive" disclosure, is by way of a Court Order. il. THE FACTS 4. Independent Counsel are defined in the Indian Residential Schools Settlement Agreement ("IRSSA") as: Independent Counsel" means Plaintiffs' Legal Counsel who have signed this Agreement, excluding Legal Counsel who have signed this Agreement in their capacity as counsel for the Assembly of First Nations or for the Inuit Representatives or Counsel who are members of the Merchant Law Group or members of any of the firms who are members of the National Consortium. 2 5. Independent Counsel have acted on claims for survivoÍs across Canada and have undertaken since the beginning of the IAP process to comply with the terms of the IRSSA and the CBA Guidelines. Subsequently, after her decision in the Blott application in this proceeding in November 9,2012, Independent Counsel have agreed to comply in all cases with Madam Justice Broum' s decision. A. Privacy Provisions in Schedule N of the Settlement Agreement 6 The goals of the TRC are set out atparagraph 1 of Schedule N. These include: Identify sorrces and create as complete an historical record as possible of the "IRS system and legacy". The record shall be preserved and made accessible to the public for future study and use; Settlement Agreement, Schedule N, para I (e) 7. This provision and s. 11 of Schedule N in the IRSSA are the bases for the request being made by the TRC. However, all activities of the TRC are subject to strict conditions for maintaining the privacy of all individuals. The use of any information which might identify an individual cannot be used in any way without his or her consent. Section 2 of Schedule N provides that the Commissioners: (Ð [..,] Further, the Commission shall not make any reference in any of its activities or in its report or recommendations to the possible civil or criminal liability of any person or organization, unless such findings or information about the individual or institution has already been established through legal proceedings; (g) shall not, except as reduired by law, use or permit access to statements made by individuals during any Commission events, activities or processes, except with the express consent of the individual and only for the sole purpose and extent for which the consent is granted; (h) shall not name names in their events, activities, public statements, report or recommendations, or make use of personal information or of statements made which identify a person, without the express consent of that individual, unless that information andlor the identity of the person so identified has already been established through legal proceedings, by admission, or by public disclosure by that individual. Other information that could be used to identify individuals shall be anonymized to the extent possible; (i) notwithstanding (e) shall require in camera proceedings for the taking of any statement that contains names or other identifying information of persons alleged by the ' J person making the statemcnt of somc wrong doing, unless the person named or identified has been convicted for the alleged wrong doing.