Supreme Court

Aboriginal and Indigenous Law

Practice and procedure

Representative or class actions

Judicial intervention was necessary in face of unauthorized modification of agreement contrary to parties' intentions

Indian Residential Schools Settlement Agreement settled class actions by former students and provided Independent Assessment Process (IAP) to claim compensation for harms suffered at residential schools. Adjudicator denied claimant's claim and his appeals within IAP were dismissed on review and re-review. Claimant requested directions from Supervising Judge tasked with overseeing implementation of Agreement. Supervising Judge found adjudicator erred in interpreting IAP and remitted claim for re-adjudication. Canada successfully appealed to Court of Appeal, which held that Supervising Judge improperly intervened. Claimant appealed to Supreme Court of Canada. Appeal allowed. Claimant was entitled to judicial recourse. Supervising Judge properly identified failure to apply IAP Model in adjudication of claimant’s claim. Judicial intervention was necessary in the face of an unauthorized modification of the Agreement, contrary to parties' intentions. Failure to correct Adjudicator’s interpretation would unacceptably undermine purpose of Agreement.

J.W. v. Canada (Attorney General) (2019), 2019 CarswellMan 363, 2019 CarswellMan 364, 2019 SCC 20, 2019 CSC 20, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2017), 2017 CarswellMan 247, 2017 MBCA 54, Michel A. Monnin J.A., Holly C. Beard J.A., and Janice L. leMaistre J.A. (Man. C.A.).

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