J.W. v. Canada (Attorney General)

J.W. v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2019-04-12
Neutral citation
2019 SCC 20
Report
[2019] 2 SCR 224
Case number
37725
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Manitoba
Notes
Case in brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: J.W. v. Canada (Attorney General), 2019 SCC 20, [2019] 2 S.C.R. 224
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)
J.W. v. Canada (Attorney General), 2019 SCC 20, [2019] 2 S.C.R. 224
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 and K.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.
Per Wagner C.J. and Abella and Karakatsanis JJ.: Judicial intervention was necessary in the face of an unauthorized modification of the Agreement, contrary to the intentions of the parties. This is precisely the type of compensable claim contemplated by the parties to the Agreement. Failure to correct the initial adjudicator’s errors in this case would unacceptably undermine the whole purpose of the Agreement.
The appellate authorities have indicated that courts may intervene in relation to IAP adjudications when exceptional circumstances are present. There are compelling reasons for setting a high bar for judicial intervention in the IAP context. The parties went to significant lengths to make the Agreement a complete code, by including levels of internal review and choosing not to include any provision granting court access.
On the other hand, the necessity of ongoing judicial supervision was recognized when the Agreement was approved by the courts. There is a foundational link between judicial supervision and the Agreement. The existence of the Agreement was contingent on judicial approval, and judicial approval, in turn, was contingent on ongoing judicial supervision. Given the goals of the Agreement, significant and ongoing judicial supervision was necessary. Without ongoing judicial supervision, the Agreement would not have been recognized. In overseeing the administration and implementation of the Agreement, courts have a duty to ensure that the claimants receive the benefits they bargained for. While the parties do not have a broad right to judicial intervention, they do have a right to the implementation of the terms of the settlement.
As to when judges, exercising their supervisory role, should intervene in an IAP adjudication, there is an ongoing duty to supervise the administration and implementation of the Agreement, including the IAP. In exercising this supervisory role, judges can intervene if there has been a failure to apply and implement the terms of the Agreement. In determining whether this failure exists, judges will focus on the words of the Agreement, so that the benefits promised to the claimants are delivered. Interpreting this role too narrowly prevents any meaningful judicial supervision of IAP decisions. It is paramount that the agreed‑upon terms of the IAP are applied and implemented in a way that is consistent with the parties’ intentions.
In this case, the initial adjudicator’s decision constituted an unauthorized modification of the IAP. By substituting the wording of the IAP with her own and by adding a requirement of the perpetrator’s sexual intent unsupported by the language of the IAP, the adjudicator relied on additional requirements that were not agreed to by the parties. These errors were compounded by her misinterpretation of the case law with respect to sexual assault, which contributed to an unauthorized modification of the IAP. This amounted to a failure to apply or implement the terms of the Agreement, warranting judicial intervention to ensure that the benefits promised in the Agreement were delivered. In intervening, the supervising judge in this case did not usurp the role assigned to IAP adjudicators by re‑weighing factual findings. Instead, he properly identified a failure to apply the Agreement in the adjudication of W’s claim.
Per Moldaver and Côté JJ.: Judicial review under an administrative law analysis is not applicable to IAP decisions. As the purpose of judicial review is to ensure the legality of state decision making, it is available only where there is an exercise of state authority that is of a sufficiently public character. The Agreement is, at its root, a contract. It was not created by any act of the executive or the legislature, but is a contractual settlement of private law tort claims, to which effect has been given by court orders. IAP adjudicators exercise powers granted by contract and have no statutory authority. The courts’ general supervisory jurisdiction allows them to ensure that the Agreement’s contractual commitment is fulfilled, but this does not mean that IAP adjudicators are state actors. Nor does this analysis change just because Canada is one of the parties to the Agreement. The availability of judicial review depends on the source of the decision maker’s authority, not the identity of the parties. In this case, the IAP adjudicators’ authority was conferred by the parties to the Agreement, not by an act of the legislature or the exercise of prerogative powers. Moreover, the fact that the contract was approved by court order does not transform the operation of this private settlement into a public act.
While the parties do not have the option of seeking judicial review of IAP decisions, they can file RFDs with the supervising courts to resolve issues relating to the implementation and administration of the Agreement, after fully exhausting the internal review mechanisms in the Agreement. Authority for recourse to the supervising courts can be found in the Agreement, the Approval and Implementation Orders, and provincial class proceedings legislation. The Agreement contemplates recourse to the supervising courts in certain specific circumstances — i.e., where losses may exceed the maximum compensation available under the IAP or where the evidence is overly complex. This creates an alternative avenue for dealing with claims that would otherwise be heard by IAP adjudicators but does not permit the courts to intervene in IAP decisions. The supervising courts’ jurisdiction is also grounded in the Approval and Implementation Orders. These orders state the courts’ powers in broad terms. Finally, provincial class proceedings legislation grants broad supervisory jurisdiction to ensure that a class action proceeds in a fair and efficient manner. However, these broader conferrals of authority are given form and content by the facts of particular class proceedings. In the context of the supervision of a settlement agreement, the terms of the agreement are determinative. While supervising judges are not free to approve an agreement that fully ousts their supervisory jurisdiction, their authority is limited and shaped by the terms of the agreement.
While it is clear that the courts retain supervisory powers pursuant to the Agreement itself, the Approval and Implementation Orders and class proceedings legislation, a distinction must be drawn between providing directions respecting the implementation and administration of the Agreement, on the one hand, and reviewing adjudicators’ interpretations of the IAP, on the other. Only the former falls within the jurisdiction of the courts. Parties may seek judicial recourse only in cases where the IAP adjudicator failed to apply the terms of the Agreement, as this constitutes a failure to comply with the Agreement and the IAP. As long as it can be said that an adjudicator has turned his or her mind to the compensation category raised by the claimant, then the adjudicator has applied the terms of the Agreement. Since the parties have expressed a clear intention to grant IAP adjudicators exclusive jurisdiction to interpret the terms of the Agreement and the IAP, it must be accepted that an adjudicator who has interpreted these terms, even if a court considers the interpretation unreasonable, has not failed to apply the terms. The test for judicial recourse is therefore whether there has been a failure by the IAP adjudicator to apply the terms of the IAP, which accounts to a failure to enforce the Agreement.
The weight of the authorities supports a high jurisdictional threshold for supervising courts considering IAP decisions. The cases highlight several reasons why access to judicial recourse in respect of IAP decisions should be construed narrowly. First, this approach honours the intentions of the parties to the Agreement. Second, in entering into the Agreement, claimants relinquished their right to have their claims resolved by the courts in favour of a process with various compensatory and non‑compensatory benefits; as such, disagreement with the conclusions reached by adjudicators, whether on matters of fact or on the interpretation of the terms of the IAP, should be addressed through the review procedures provided for in the IAP and, if necessary, by approving binding instructions to adjudicators. Third, the scheme need not be infallible. Fourth, to open IAP decisions to intervention by the courts would be contrary to the objective of efficient and timely resolution of disputes with finality. Fifth, a broad right to judicial recourse in respect of IAP decisions would allow Canada, and not only claimants, to challenge adjudicators’ conclusions with which it disagreed. Sixth, under a broader interpretation of the judicial oversight function, supervising judges would be engaging in the same exercise as reviewing adjudicators under the IAP.
While the parties’ intentions in creating the Agreement and the IAP must be honoured, circumstances will inevitably arise that were not foreseen by the parties and are therefore not provided for in the Agreement. Should a situation arise which was not contemplated by the parties, courts must have the power to intervene to ensure that the parties receive the benefits of the Agreement, i.e., what they bargained for. The courts have the jurisdiction to ensure that the Agreement provides both procedural and substantive access to justice. Should a situation arise which is not provided for in the Agreement and which might affect the outcome of a claim, it would be inconsistent with the purpose of the settlement to deny relief to the claimant. However, parties are not automatically entitled to have a claim reopened if they are able to point to a procedural gap in the IAP. A case‑by‑case analysis is required, and a variety of factors may have to be considered, including whether some prejudice to the party requesting judicial intervention has been shown. Cases in which a claim can be reopened will be rare. Ultimately, a balance must be struck between resolving claims efficiently and obtaining a sense of finality for the parties, on the one hand, and ensuring fair and just outcomes, on the other.
In this case, the supervising judge erred in scrutinizing the initial adjudicator’s interpretation of the IAP and substituting his own. The supervising judge was entitled only to determine whether the adjudicator had considered the correct terms. Instead, he engaged in the same analysis that the parties assigned to IAP adjudicators and came to a different result. While the adjudicator interpreted the sexual abuse category of the IAP differently, this does not amount to a failure to apply the terms of the IAP. The choice to deny W’s claim was based on a deliberate interpretation of and engagement with the sexual abuse category of the IAP. The adjudicator had regard to and applied the factors in that category, and her decision was upheld, in keeping with the review mechanism contained in the IAP. While the supervising judge may have disagreed with the outcome, this was not a basis for finding that the adjudicator had failed to apply the terms of the IAP. The supervising judge exceeded his jurisdiction by substituting his own interpretation of the IAP and directing that the claim be reconsidered in accordance with that interpretation.
However, while the supervising judge erred in his analysis, this is an exceptional case in which reconsideration is appropriate. W’s claim has given rise to a unique dilemma for which the Agreement provides no internal recourse, and which therefore requires the Court to craft a remedy. Certain concessions made at the hearing before the Court exposed a gap in the Agreement’s provisions. Specifically, the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat conceded that the decisions of the initial and review adjudicators in this case were aberrant, and that he has no authority to reopen W’s claim despite this conclusion. The Chief Adjudicator’s inability to remedy such an error in IAP decisions is clearly inconsistent with the role conferred upon him by the parties — i.e., the parties intended that the Chief Adjudicator should represent the final level of review in order to ensure consistency across all IAP decisions. The practical effect of this situation is that W did not receive the benefits bargained for. As there is no remedy within the four corners of the Agreement that is available to either W or the Chief Adjudicator, the courts must step in to fill this gap. It is particularly appropriate that the Court intervene in light of the fact that the Agreement is a settlement of a class action, and it can be assumed that all similarly situated individuals are entitled to the same treatment under the scheme.
This is a situation in which the courts can step in to provide a remedy that is consistent with the Agreement’s objective of promoting a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools. The appeal should be allowed and the order made by the supervising judge that W’s claim be sent back to a first‑level IAP adjudicator for reconsideration should be reinstated. Given that W’s claim has already been reconsidered and that the Chief Adjudicator is satisfied that the reconsideration adjudicator properly applied the IAP, the compensation award should be reinstated, with interest.
Per Brown and Rowe JJ. (dissenting): The appeal should be dismissed. Côté J. correctly states the law for a majority of the Court regarding the jurisdiction of the supervising courts in respect of IAP decisions. Where there is a gap in the Agreement, a court might fill it in accordance with the parties’ intentions. However, as no gap exists here, there is no basis for rewriting the terms of the Agreement.
The Agreement is a contract. Interpreting its terms therefore requires a court to discern the parties’ intentions. In this case, it was the parties’ intention that the Chief Adjudicator not have the authority to respond to incorrect interpretations of the IAP by reopening claims. Instead, the Chief Adjudicator has a right of final review of IAP decisions and is empowered to remedy incorrect interpretations of the IAP on a prospective basis by preparing instructions for the IAP Oversight Committee.
The Agreement expressly precludes judicial intervention, even where the IAP has been incorrectly interpreted and applied. It is a complete code that limits access to the courts, preserves the finality of the IAP and respects the expertise of IAP adjudicators. The adjudication of IAP claims is limited to one in‑person hearing and two levels of internal review without any judicial recourse. Given the finality promised by the IAP, the parties would have seen prolonged litigation of IAP claims in the courts to be undesirable. The internal mechanisms of review in the Agreement have clearly been designed to allow for judicial recourse in specific situations. But this does not include incorrect interpretations of the IAP.
Where the parties have failed in their contract to address a particular situation arising in the course of their relationship, a court may imply a contractual term. This does not permit a court to imply a term which is contrary to the parties’ clearly expressed intentions. Straining to find a gap in the Agreement so as to open space for judicial recourse where the parties clearly intended to preclude it defeats the intentions of the parties and undermines the integrity of the process that they settled upon. Merely because the Agreement does not contain certain terms does not mean that there is a gap waiting to be filled by judges. There is a difference between failing to grant authority and deciding not to grant such authority. A review of the Agreement reveals that the absence of a term authorizing the Chief Adjudicator to reopen claims clearly represents an instance of the latter. In addition, the Chief Adjudicator’s concession in this case does not expose any gap in the Agreement, much less any basis for judicial intervention to fill it. In any event, the Chief Adjudicator did not clearly agree that such a gap existed here. The denial of compensation to W was not the result of any gap which required judicial recourse so as to reopen the claim; instead, it resulted from the Chief Adjudicator failing to properly discharge his final review obligations.
Cases Cited
By Abella J.
Explained: R. v. Chase, [1987] 2 S.C.R. 293; considered: Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471, 111 O.R. (3d) 461; referred to: Baxter v. Canada (Attorney General) (2006), 83 O.R. (3d) 481; Fontaine v. Canada (Attorney General), 2017 ONCA 26, 137 O.R. (3d) 90; N.N. v. Canada (Attorney General), 2018 BCCA 105, 6 B.C.L.R. (6th) 335; R. v. Ewanchuk, [1999] 1 S.C.R. 330.
By Côté J.
Distinguished: Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205; considered: Fontaine v. Canada (Attorney General), 2016 BCSC 2218, [2017] 1 C.N.L.R. 104; Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471, 111 O.R. (3d) 461; N.N. v. Canada (Attorney General), 2018 BCCA 105, 6 B.C.L.R. (6th) 335; Fontaine v. Canada (Attorney General), 2017 ONCA 26, 137 O.R. (3d) 90; referred to: Fontaine v. Canada (Attorney General), 2016 ONCA 241, 130 O.R. (3d) 1; Fontaine v. Canada (Attorney General), 2014 ONSC 4024, [2014] 4 C.N.L.R. 67; R. v. Chase, [1987] 2 S.C.R. 293; Fontaine et al. v. Canada (Attorney General) et al., 2014 MBQB 200, 311 Man. R. (2d) 17; Fontaine v. Canada (Attorney General), 2015 ABQB 225, [2015] 4 C.N.L.R. 69; Fontaine v. Canada (Attorney General), 2016 ONSC 4326, [2016] 4 C.N.L.R. 40; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Fontaine et al. v. Canada (Attorney General) et al., 2014 MBCA 93, 310 Man. R. (2d) 162; Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86; Baxter v. Canada (Attorney General) (2006), 83 O.R. 481; Fontaine v. Canada (Attorney General), 2017 BCSC 946; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.
By Brown J. (dissenting)
Fontaine v. Canada (Attorney General), 2017 ONCA 26, 137 O.R. (3d) 90; Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205; M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619; Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085; Fontaine v. Canada (Attorney General), 2016 BCSC 2218, [2017] 1 C.N.L.R. 104; N.N. v. Canada (Attorney General), 2018 BCCA 105, 6 B.C.L.R. (6th) 335; Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86; Fontaine v. Canada (Attorney General), 2018 ONSC 103; Spencer v. Continental Insurance Co., [1945] 4 D.L.R. 593.
Statutes and Regulations Cited
Class Proceedings Act, C.C.S.M., c. C130, s. 12.
Court of Queen’s Bench Act, C.C.S.M., c. C280, Part XIV.
Treaties and Agreements
Indian Residential Schools Settlement Agreement (2006), preamble, arts. 1.01, 4.11, 5, 5.09, 6, 6.03, 7.01, 12.01, 13.08, Sch. D, arts. I, II, III, App. V, IX, X, XII, XIII.
Authors Cited
Hall, Geoff R. Canadian Contractual Interpretation Law, 3rd ed. Toronto: LexisNexis, 2016.
Indian Residential Schools Adjudication Secretariat. Independent Assessment Process (IAP) Statistics (online: http://www.iap‑pei.ca/stats‑eng.php?act=20181031; archived version: http://www.scc‑csc.ca/cso‑dce/2019SCC‑CSC20_1_eng.pdf).
Swan, Angela, Jakub Adamski and Annie Y. Na. Canadian Contract Law, 4th ed. Toronto: LexisNexis, 2018.
The Right Honourable Stephen Harper on behalf of the Government of Canada. “Statement of Apology to former students of Indian Residential Schools”. Ottawa, June 11, 2008 (online: https://www.aadnc‑aandc.gc.ca/DAM/DAM‑INTER‑HQ/STAGING/texte‑text/rqpi_apo_pdf_1322167347706_eng.pdf; archived version: http://www.scc‑csc.ca/cso‑dce/2019SCC‑CSC20_2_eng.pdf).
APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Beard and leMaistre JJ.A.), 2017 MBCA 54, 413 D.L.R. (4th) 521, [2017] 3 C.N.L.R. 85, [2017] AZ‑51399218, [2017] M.J. No. 163 (QL), 2017 CarswellMan 247 (WL Can.), setting aside a decision of Edmond J., 2016 MNQB 159, [2016] 4 C.N.L.R. 23, [2016] M.J. No. 232 (QL). Appeal allowed, Brown and Rowe JJ. dissenting.
Martin U. Kramer and Richard E. Olschewski, for the appellants.
Mitchell R. Taylor, Q.C., and Dayna Anderson, for the respondent the Attorney General of Canada.
Joseph J. Arvay, Q.C., Susan E. Ross and David W. L. Wu, for the respondent the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat.
Stuart Wuttke and Julie McGregor, for the respondent the Assembly of First Nations.
David Schulze, Maryse Décarie‑Daigneault and David P. Taylor, for the intervener the Independent Counsel.
Karim Ramji, for the intervener K.B.
The reasons of Wagner C.J. and Abella and Karakatsanis JJ. were delivered by
[1] Abella J. — The years of sustained abuse committed in Residential Schools represent a profoundly shameful era in Canada’s history. The legacy of the harms committed there consists of deep wounds not only to those who were forced to attend, but also to our national psyche. The recovery process, when it is possible, is slow and painful. But at least there is a process, one that pays respectful tribute to the enduring character of the harm and the need to address it. The Indian Residential Schools Settlement Agreement (2006) is part of that healing process.
[2] When J.W. was a young boy at a Residential School a nun touched his genitals over his clothing. He was standing in line waiting for a shower. He was wearing what he described as a “little apron”.
[3] In 2014, J.W. brought a claim for compensation in accordance with the Independent Assessment Process (IAP), the adjudicative component of the Agreement, alleging that this incident fell within the following category of abuse:
Any touching of a student, including touching with an object, by an adult employee or other adult lawfully on the premises which exceeds recognized parental contact and violates the sexual integrity of the student. [art. II]
[4] J.W.’s claim proceeded in Manitoba. The Hearing Adjudicator concluded that the “sexual” intent of the nun was an element that had to be shown by the claimant. Despite the fact that she accepted that the incident had occurred as J.W. described, the Hearing Adjudicator denied his claim because he was unable to prove the nun’s sexual intent.
[5] The issue in this appeal is whether J.W. was entitled to judicial recourse.
Background
[6] The Agreement represents the negotiated settlement of thousands of individual and class action suits filed against a number of defendants, including the Government of Canada and various churches, relating to the operation of Residential Schools.
[7] The Agreement includes a procedure for settling individual claims through an adjudicative process; provides for support services for former students; sets out a national procedure for healing, education and reconciliation through the Truth and Reconciliation Commission; and creates a scheme for the general implementation of public programs to recognize and commemorate the significant and lasting harms caused by the Residential Schools system.
[8] While not admitting liability, the defendants acknowledged that harms and abuses were committed against Indigenous children at these schools. The individuals in the various classes of plaintiffs and potential claimants could opt out of the Agreement and pursue their own litigation through the courts, but they could not take this route if they accepted compensation pursuant to the Agreement.
[9] Two avenues to compensation are available under the Agreement: the “common experience” payment received by all eligible former students, and individual payments awarded to claimants who establish specific compensable harms. These individual claims are adjudicated through the IAP. The rules governing these adjudications are set out in Schedule D to the Agreement.
[10] The Schedule describes which harms are compensable, what must be established by the claimant, and sets out a compensation scale. It includes both standard and complex track claims. Certain complex track claims may be referred to the courts by the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat who is generally responsible for guiding, training and assisting the adjudicators. This is the only category of claims which provides a mechanism for court access.
[11] There is a system of internal reviews. If the alleged error in an adjudicative decision is a palpable and overriding factual one, the scheme allows for one level of internal review. If the error alleged is a failure to apply the IAP Model to the facts, there are two levels of internal review available.
[12] J.W.’s claim is a standard track claim. That entitled him to an in-person hearing and the possibility of two levels of internal review. There is, however, no right of appeal to the courts.
[13] Because the Agreement constitutes the settlement of ongoing actions, judicial approval was required. The parties brought the proposed settlement to the superior courts for approval, and between December 2006 and January 2007, nine provincial and territorial superior courts approved the Agreement through Approval Orders.
[14] Ontario was the first jurisdiction to approve the Agreement, subject to certain conditions, in December 2006. In Baxter v. Canada (Attorney General) (2006), 83 O.R. (3d) 481 (S.C.J.), the decision accompanying the first Approval Order, Winkler R.S.J. emphasized the enduring, harmful legacy of Residential Schools which ultimately led to the Agreement:
For over 100 years, Canada pursued a policy of requiring the attendance of Aboriginal children at residential schools, which were largely operated by religious organizations under the supervision of the federal government. The children were required to reside at these institutions, in isolation from their families and communities, for varying periods of time. This policy was finally terminated in 1996 with the closing of the last of the residential schools and has now been widely acknowledged as a seriously flawed failure. In its attempts to address the damage inflicted by, or as a result of, this long-standing policy, the settlement is intended to offer a measure of closure for the former residents of the schools and their families.
The flaws and failures of the policy and its implementation are at the root of the allegations of harm suffered by the class members. Upon review by the Royal Commission on Aboriginal Peoples, it was found that the children were removed from their families and communities to serve the purpose of carrying out a “concerted campaign to obliterate” the “habits and associations” of “Aboriginal languages, traditions and beliefs”, in order to accomplish “a radical re-socialization” aimed at instilling the children instead with the values of Euro-centric civilization. The proposed settlement represents an effort to provide a measure of closure and, accordingly, has incorporated elements which provide both compensation to individuals and broader relief intended to address the harm suffered by the Aboriginal community at large. [Emphasis added; paras. 2-3.]
[15] As Winkler R.S.J. emphasized, given the goals of the Agreement, significant and ongoing judicial supervision was necessary. As he said, supervising courts must “ensur[e] that the administration and implementation of the settlement are done in a manner that delivers the promised benefits to the class members. . . . Once the court is engaged, it cannot abdicate its responsibilities” (Baxter, at para. 12). Additionally, “the court must be in a position to effectively evaluate the administration and the performance of the administrator and, further, be empowered to effect any changes that it finds necessary to ensure that the benefits promised under the settlement are being delivered” (para. 51).
[16] Winkler R.S.J. stressed that, as in all class actions, the courts must strive to protect the class members and ensure that the benefits they agreed to are actually delivered. In order to deliver efficient, coordinated judicial supervision of the multi-jurisdictional Agreement, he suggested that each supervising court approve a Court Administration Protocol.
[17] The Approval Orders in all other provinces were substantially similar, and stated that superior court judges ­were entitled to hear “Requests for Directions” with respect to the ongoing administration and implementation of the Agreement. Paragraph 31 of the Manitoba Approval Order, for example, states:
THIS COURT DECLARES that the Representative Plaintiffs, Defendants, Released Church Organizations, Class Counsel, the National Administration Committee, or the Trustee, or such other person or entity as this Court may allow, after fully exhausting the dispute resolution mechanisms contemplated in the Agreement, may apply to the Court for directions in respect of the implementation, administration or amendment of the Agreement or the implementation of this judgment on notice to all affected parties, all in conformity with the terms of the Agreement. [Emphasis added.]
The inclusion of the Requests for Directions provision in the Approval Orders contemplates that recourse to the courts is possible in circumstances where all internal mechanisms have been exhausted and directions are needed about the implementation of the Agreement.
[18] The effect of the Approval Orders in the provinces was the certification of the actions as a class proceeding, subject to certain changes being made to the Agreement.
[19] By March 2007, all nine provincial and territorial jurisdictions implicated by the Agreement took the next step and implemented the Agreement by court orders. These Implementation Orders incorporated the Agreement and addressed issues relating to its administration.
[20] Notably, the Manitoba Implementation Order concludes by stating that “the Courts shall supervise the implementation of the Agreement and this order and, without limiting the generality of the foregoing, may issue such further and ancillary orders, from time to time, as are necessary to implement and enforce the provisions of the Agreement” (para. 23).
[21] As proposed by Winkler R.S.J. in Baxter, a Court Administration Protocol was appended to each province’s Implementation Order, stating that two Administrative Judges would be appointed to work in conjunction with the Supervising Judges from each province to oversee the administration and implementation of the Agreement. The Protocol stated that each Request for Directions brought by a party would be first made to one of the two Administrative Judges, who would then direct it to a Supervising Judge for a hearing if necessary.
[22] Supplemented by the applicable class proceedings regime in each affected province and territory, and the inherent jurisdiction of the superior courts, the Approval and Implementation Orders gave the courts broad supervisory and administrative authority in overseeing the application and implementation of the Agreement. This authority was integral to the Agreement’s goal of addressing the serious harms caused by Residential Schools and was a fundamental precondition to judicial endorsement. Ongoing judicial supervision was seen to be necessary to ensure that the benefits promised to the claimants — benefits for which they relinquished their litigation rights — were delivered in accordance with the terms of the Agreement (Baxter, at paras. 12 and 51).
[23] This history demonstrates the foundational link between judicial supervision and the Agreement. The existence of the Agreement was contingent on judicial approval, and judicial approval, in turn, was contingent on ongoing judicial supervision.
[24] The Ontario Court of Appeal explained how this ongoing judicial supervision should be exercised in Fontaine v. Duboff Edwards Haight & Schachter (2012), 111 O.R. (3d) 461 (Schachter). The decision concerned a legal fee dispute, which came to the courts by way of a Request for Directions. While concluding that judicial review in the administrative law sense was unavailable, the Court of Appeal described the appropriate scope of judicial recourse. Rouleau J.A. acknowledged that adjudicators “cannot ignore” the provisions of the Implementation Orders, and that they must apply the relevant factors in the Agreement. But in his view, “[i]n the perhaps unlikely event that the final decision of the Chief Adjudicator reflects a failure to consider the terms of the [Agreement] and implementation orders . . . then, in my view, the parties to the [Agreement] intended that there be some judicial recourse” (para. 53). He found that this judicial recourse was necessary to ensure that the bargain the parties agreed to was respected, a critical consideration given the vulnerability of the claimants. However, he held that judicial recourse was limited to “very exceptional circumstances” because the parties intended that the implementation of the Agreement be expeditious and the Agreement aimed to achieve finality.
[25] The Ontario Court of Appeal returned to the scope of the courts’ supervisory jurisdiction in Fontaine v. Canada (Attorney General) (2017), 137 O.R. (3d) 90, and concluded that the “exceptional circumstances” threshold applied to IAP adjudicative decisions. Writing for the court, Sharpe J.A. held that Supervising Judges should not conduct “a detailed review of the factual findings made by the adjudicator” because that would allow judges to usurp the role of IAP review adjudicators (para. 55). Disagreement with the result reached does not amount to a failure to apply or enforce the Agreement.
[26] The British Columbia Court of Appeal also adopted the “exceptional circumstances” threshold in N.N. v. Canada (Attorney General) (2018), 6 B.C.L.R. (6th) 335. In that case, the majority concluded that exceptional circumstances exist if there is a “gap” in the Agreement. The inability of adjudicators to reopen concluded claims in circumstances where there was new, material evidence was one such “gap”, and therefore an “exceptional circumstance” warranting judicial intervention.
[27] The appellate authorities in Ontario and British Columbia have thus indicated that courts may intervene in relation to IAP adjudications when exceptional circumstances are present, a threshold which is met if there is either a failure to apply the terms of the Agreement, including the Approval and Implementation Orders, or if there is a “gap” in the Agreement.
[28] I agree that there are compelling reasons for setting a high bar for judicial intervention in the IAP context. The parties went to significant lengths to make the Agreement a “complete code”, with specialized training for adjudicators, levels of internal review, the creation of an IAP Oversight Committee responsible for monitoring the implementation of the IAP and the absence of any provision granting court access in the context of standard track IAP decisions.
[29] On the other hand, the necessity of ongoing judicial supervision was recognized when the Agreement was approved, as noted by Winkler R.S.J. in Baxter.
[30] Without ongoing judicial supervision, the Agreement would not have been recognized. In overseeing the administration and implementation of the Agreement, therefore, courts have a duty to ensur