JW v. CANADA (ATTORNEY GENERAL) 2019 SCC 20

A judge has the power to step in when a man’s claim was wrongly denied under the Indian Residential Schools Settlement Agreement.

In Canada, from 1860s to 1990s, approximately 1,50,000 First Nations, Inuit and Métis children were put into boarding schools called “Indian Residential Schools.” The children were taken away from their homes and the boarding schools they were put in were set up and run by the federal government and churches concurrently. Sadly, in the boarding schools, many students were physically, sexually and psychologically abused.

As the years passed, several former students sued the federal government and churches for the harm they suffered. To settle the lawsuits, an agreement (Indian Residential Settlement Agreement) was entered into in the year 2006. The agreement brought way for national healing, education and reconciliation through the Truth and Reconciliation Commission. Further, it provided for victims to seek compensation through the Independent Assessment Process (IAP). The IAP decisions are undertaken by adjudicators who calculate the compensation victims are entitled to receive. A “supervising judge” is assigned to each province to oversee the settlement agreement and make sure the compensation and benefits are bargained. In the current case, the issue was whether a judge was allowed to intervene in an adjudicator’s decision.

JW, a resident school as a young boy was waiting to have a shower, when a nun grabbed his private parts over his clothes. JW asked for compensation for the sexual abuse he had undergone, but his claim was denied. JW was required to prove that the nun’s touch fell under the sexual category. Two IAP reviewers looked at the decision but denied the claim. Thereafter, JW asked the supervising judge in Manitoba to look at his case.

The judge was of the view that the reviewers had failed to apply the agreement and a new decision maker should hear the case again. The new decision maker was of the view that JW had been sexually abused and was entitled to compensation. The federal government appealed the judge’s decision before JW could be paid the compensation. It was contented that the judge was not in a capacity to give his own interpretation of the Settlement Agreement. The Court of Appeal accepted this contention and stated that the judge only had the power to look at whether the IAP decision maker considered the correct parts of the agreement. Thereby, it resorted the original decision where JW’s claim was denied.

The Supreme Court heard the case with 7 judges; where the judgement split in three ways. Five judges arrived at the conclusion that appellant was entitled to receive the benefits under the Settlements Agreement promised to him; but they arrived at this through varied reasoning. The held that the new decision maker’s decision was correct and appellant should receive compensation. It highlighted the fact that the Settlement Agreement was entered into for the purpose of compensating the victims with damage caused by the Indian Residential schools Policy. They viewed that resolving cases similar to JW is an integral part of the process to serve the ends of the Settlement Agreement.