J.W. and REO Law Corporation Appellants and Attorney General of Canada, Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat and Assembly of First Nations Respondents - and - Independent Counsel and K.B. Interveners; click here for more.

SUPREME COURT OF CANADA

Citation: J.W. v. Canada (Attorney General), 2019 SCC 20

Appeal Heard: October 10, 2018 Judgment Rendered: April 12, 2019 Docket: 37725

Between:

J.W. and REO Law Corporation

Appellants

and

Attorney General of Canada, Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat and Assembly of First Nations

Respondents

- and -

Independent Counsel and K.B.

Interveners

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ.

Reasons: (paras. 1 to 55)	Abella J. (Wagner C.J. and Karakatsanis J. concurring)
Concurring Reasons: (paras. 56 to 174)	Côté J. (Moldaver J. concurring)
Dissenting Reasons: (paras. 175 to 196)	Brown J. (Rowe J. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

j.w. v. canada (attorney general)

J.W. and REO Law Corporation                                                                   Appellants

v.

Attorney General of Canada,

Chief Adjudicator of the Indian Residential

Schools Adjudication Secretariat and

Assembly of First Nations                                                                          Respondents

and

Independent Counsel andK.B.                                                                    Interveners

Indexed as: J.W. v. Canada (Attorney General)

2019 SCC 20

File No.: 37725.

2018: October 10; 2019: April 12.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ.

on appeal from the court of appeal of manitoba

                    Civil procedure — Class proceedings — Settlement — Administration and implementation — Settlement agreement resolving class actions brought by former Aboriginal students for harms suffered at residential schools — Agreement providing procedure for settling individual claims through adjudicative process — Whether courts can intervene in relation to adjudication decisions where internal review mechanisms exhausted — Appropriate scope of judicial recourse.

                    The Indian Residential Schools Settlement Agreement (“Agreement”) represents the negotiated settlement of thousands of individual and class action lawsuits relating to the operation of residential schools. Nine provincial and territorial superior courts approved the Agreement. The Agreement includes a procedure for settling individual claims through an adjudicative process — the Independent Assessment Process (“IAP”). The IAP describes which harms are compensable. The Agreement also includes a system of internal reviews. There is no right of appeal to the courts. However, supervising judges from each province oversee the administration and implementation of the Agreement.

                    W brought a claim for compensation in accordance with the IAP, alleging that an incident he suffered while attending a residential school constituted compensable sexual abuse within the meaning of the IAP. W’s claim was rejected by the initial adjudicator because, despite the fact that she believed W’s account of what transpired, she was not satisfied that the perpetrator acted with a sexual purpose, which she concluded was an essential element in order to demonstrate that the incident was compensable. W was entitled to two levels of internal review, both of which were unsuccessful. Having exhausted his internal remedies, W brought a Request for Directions (“RFD”) to a supervising judge, pursuant to the Agreement. The supervising judge found errors in the adjudicator’s interpretation of the IAP warranting judicial intervention and remitted W’s claim for re‑adjudication. A reconsideration adjudicator allowed W’s claim, and awarded him compensation. Before the reconsideration decision was implemented, Canada appealed the supervising judge’s decision. The Court of Appeal found that there was no basis upon which the supervising judge could intervene, and overturned his decision.

                    Held (Brown and Rowe JJ. dissenting): The appeal should be allowed and the reconsideration adjudicator’s compensation award reinstated.