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ABORIGINAL STATUS AND RIGHTS - Civil actions and liabilities - Historical grievances - Residential schools

Friday, April 12, 2019 @ 1:28 PM  


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Appeal by JW from a judgment of the Manitoba Court of Appeal setting aside a decision of the Supervising Judge remitting JW’s claim under the Indian Residential Schools Settlement Agreement (Agreement) for re-adjudication. While JW was a young boy at a Residential School, a nun touched his genitals over his clothing. He brought a claim for compensation in accordance with the Independent Assessment Process (IAP), the adjudicative component of the Agreement. The Hearing Adjudicator accepted that the incident had occurred as JW had described but denied his claim because he was unable to prove the nun’s sexual intent. Both of JW’s requests for internal review of the decision were unsuccessful. Having exhausted his internal remedies, JW then brought a Request for Directions to the Supervising Judge. The judge found three errors warranting judicial intervention and ordered that JW’s claim be sent back to an adjudicator for reconsideration. The Reconsideration Adjudicator decided in JW’s favour. The Manitoba Court of Appeal unanimously allowed the Attorney General’s appeal on the basis that the Supervising Judge had exceeded his jurisdiction. The issue in the appeal was whether JW was entitled to judicial recourse.

HELD: Appeal allowed. Judges had an ongoing duty to supervise the administration and implementation of the Agreement, including the IAP. In exercising this supervisory role in the Requests for Directions context, judges could intervene if there was a failure to apply and implement the terms of the Agreement. In intervening, the Supervising Judge did not usurp the role assigned to IAP adjudicators by re-weighing factual findings. Here, the Adjudicator had added a requirement of the perpetrator’s sexual intent that was unsupported by the language of the IAP. The nun’s conduct in touching JW’s genitals had not only objectively violated the sexual integrity of the student, contrary to the definition of sexual abuse in the Agreement, but it had exceeded recognized parental contact. JW’s claim was therefore compensable. This was the only tenable conclusion in light of the factual findings made by the Hearing Adjudicator. The appeal was allowed with costs, and the Reconsideration Adjudicator’s decision allowing JW’s claim was reinstated.

J.W. v. Canada (Attorney General), [2019] S.C.J. No. 20, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown and M. Rowe JJ., April 12, 2019. Digest No. TLD- April82019012-SCC