J.W. and REO Law Corporation v. Attorney General of Canada, et al.

(Manitoba) (Civil) (By Leave)

(Sealing order)


Civil procedure - Class actions, Administrative law, Judicial review - Civil procedure - Class actions - Settlement - Administrative law - Judicial review - Indian Residential Schools Settlement Agreement (“IRSSA”) resolving class actions by Aboriginal persons who attended Indian Residential Schools and suffered abuse - IRSSA providing for Independent Assessment Process (“IAP”) for individual claims - Appellant alleging sexual abuse while attending school - Facts of abuse not disputed but Hearing Adjudicator denying claim based on failure to prove “sexual purpose” of perpetrator - Internal reviews pursuant to IRSSA and IAP confirming original decision - Supervising Judge setting aside original decision and returning claim to first-level adjudicator - Court of Appeal overturning Supervising Judge’s decision and affirming original denial of claim - Whether judicial review of adjudicators’ decisions in IAP available to claimants who have been unreasonably denied compensation, and, if so, what is applicable standard of review - Whether any general rule of law restricts availability of judicial review of administrative tribunals formed pursuant to terms of settlement in class proceeding - If no judicial review of IAP decisions available, and judicial supervision of IAP decisions restricted to limited basis, whether there is judicial recourse for claimant denied compensation based on unreasonable interpretation of IRSSA - Whether IRSSA and its implementation engage honour of Crown - Whether Court of Appeal was correct when it held that claimants whose claims are denied based on unreasonable interpretations of IRSSA have no recourse to courts supervising its administration.


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While a student at an Indian Residential School, a nun grabbed the appellant J.W.’s penis while he was in line for the shower. Following the establishment of the Independent Assessment Process (“IAP”) created under the Indian Residential Schools Settlement Agreement (“IRSAA”), J.W. filed a claim in the context of the IAP, arguing that the actions of the nun constituted compensable sexual abuse. J.W.’s claim was denied by a Hearing Adjudicator on the basis that he had failed to establish that the nun’s act had a “sexual purpose”, which was interpreted as a “technical requirement” for establishing sexual abuse under the IRSSA and the IAP. Subsequent attempts to have the original decision reviewed by a review adjudicator and by a re-review adjudicator were unsuccessful, and the original decision denying the claim was upheld.

Pursuant to the terms of the IRSSA, J.W. filed a Request for Direction before a Supervising Judge for the IRSSA in Manitoba. The Supervising Judge (from the Manitoba Court of Queen’s Bench) partially granted the declaration sought and found that the review adjudicators had failed to correct the error of the original Hearing Adjudicator — i.e., that J.W. needed to prove a “sexual purpose”. The Supervising Judge ordered that J.W.’s claim be sent back to a first-level adjudicator. The Manitoba Court of Appeal allowed Canada’s appeal, finding that the Supervising Judge had exceeded his jurisdiction and had misinterpreted the terms of the IRSSA, and concluding that there is no judicial review possible of adjudicator decisions pursuant to the IAP and the IRSSA. The original decision dismissing J.W.’s claim was therefore reinstated.