The Limits of Public Law: J.W. v. Canada (Attorney General), 2019 SCC 20

The Indian Residential Schools Settlement Agreement was concluded in 2006, settling class actions brought against the Government of Canada and religious organizations by those who suffered abuse in residential schools. Over a period of almost 150 years, around 150,000 young First Nations, Inuit and Métis children attended Indian Residential Schools run by religious orders and funded by the federal government; many suffered terrible abuse and the system as a whole was designed to remove children from their families, communities and cultural traditions. Already in 2001 the Canadian government had created the Office of Indian Residential Schools Resolution Canada to manage the huge volume of abuse claims. The Agreement was approved by nine provincial and territorial superior courts, who retain an oversight role in ensuring that the funds made available under the Agreement are appropriately distributed. The conclusion of the Agreement was followed in 2008 by an official apology from the Government. Part of the Agreement involved the establishment of the Truth and Reconciliation Commission (there already having been a Royal Commission on Aboriginal Peoples, which reported in 1996). It would not be an overstatement to say that the Agreement is an integral part of a long and ongoing response by the Government of Canada to marked failings in its relationship with Canada’s Aboriginal peoples.

What happens if there is a dispute about whether an individual is entitled to recover under the terms of the Agreement? In J.W. v. Canada (Attorney General), 2019 SCC 20, a majority of the Supreme Court of Canada held that the courts’ oversight role is heavily circumscribed. I am dubious about the majority’s decision, given the unique nature of the Agreement, but this is difficult terrain, located at the edge of the divide between public and private law, and an exploration of the issues should illuminate our understanding of the limits of public law.

W brought a claim under one part of the Agreement, the Independent Assessment Process. He alleged that he had been sexually abused within the meaning of the Agreement, because a nun had touched a piece of cloth he had placed over his genitals while waiting in line for a shower. His claim was denied by an adjudicator, who took the view, based on an erroneous reading of Supreme Court of Canada precedent and a fairly odd reading of the terms of the Agreement, that sexual intent was a necessary element of W’s claim (at paras. 44-45). In the absence of such intent, the adjudicator concluded, W’s claim could not succeed. There were two levels of internal review, but the scope of the appeals was limited and neither reviewer felt that they should interfere with the adjudicator’s decision.

W then made a Request for Directions to one of the judges assigned to supervise the implementation of the Agreement. What the Supreme Court of Canada had to determine was the scope of the judge’s ability to interfere with a decision taken by an adjudicator. For the plurality (3 of 7 judges), Abella J held that this was “precisely the type of compensable claim contemplated by the parties to the Agreement” and that not to rectify the adjudicator’s errors “would unacceptably undermine the whole purpose of the Agreement” (at paras. 54-55). But Côté J, concurring, found for W on the much narrower ground that this was an “exceptional” case (at para. 153). And it was her reasons on the scope of judicial oversight which “state the law for a majority of this Court with respect to the jurisdiction of the supervising courts” (at para. 175, per Brown J).

Following the Court’s recent decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, [2018] 1 SCR 750, Côté J held that judicial review was not available, as such, because “at its root”, the Agreement is 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. Their appointment and functions are determined by the parties to the contract, and they apply the Compensation Rules agreed to by the parties. The Chief Adjudicator’s authority derives from the parties’ agreement, and he does not exercise any statutory decision-making power or any power granted by the executive. The distinct roles of the courts and IAP adjudicators under the IRSSA are determined not by the division between the legislative or executive and judicial branches, but rather by the intentions of the parties (at para. 102. See similarly at para. 178, perBrown J).

To my mind, this illustrates the baleful effects of the analysis in Wall, which purports to create a firm divide between “public” law matters subject to judicial review and “private” law matters which judicial review remedies do not reach. Here, the Agreement is a “contract” and therefore lies in the realm of private law, where certiorari et al fear to tread.

But this is much too quick a conclusion. That there was a “contract” relating to immigration sponsorship undertakings in Canada (Attorney General) v. Mavi, [2011] 2 SCR 504 did not prevent the Supreme Court of Canada from imposing procedural fairness obligations, backed up by public law remedies. Simply stating that the Agreement is a contract and thus outside the scope of judicial review is insufficient to justify Côté J’s conclusion. The same goes for her rebuttal of the appellant’s arguments at paras. 102-105, which is premised on the basis that the appellants must disprove the point that the Agreement is a contract and thus not subject to judicial review.

The better analysis, in my view, is contextual, not categorical (as it was in Mavi, where the contracts were woven into a web of legislative and regulatory activity). Whether the Agreement is a contract or not is only one component — not the decisive component — of a holistic analysis which takes into account the broad range of factors set out by Stratas JA in Air Canada v. Toronto Port Authority, [2013] 3 F.C.R. 605, at para. 60. In a case like this one, involving an Agreement which is remarkable and unlike any other class action settlement because of its historical provenance and juridical structure, only a contextual analysis can provide a satisfactory answer to the critical question: should judicial review be available? Perhaps — let me be clear — it should not: the point is that characterizing the Agreement as a contract is insufficient to justify a conclusion which, in these unique circumstances, is extremely weighty.

Moreover, even if judicial review is not available as such, there is strong authority now for the introduction of judicial review constraints, such as reasonableness and fairness, into some types of contractual arrangements: Braganza v BP Shipping [2015] UKSC 17. The United Kingdom Supreme Court’s decision has been criticised (see e.g. Varuhas, Himsworth) and, of course, as Chan and Lim observe, I would not wish Wednesbury unreasonableness on my worst enemy, never mind amiable contract lawyers. But some legal systems, such as the Irish and Scottish, happily impose public law controls on arrangements entered into between private parties. And given its structure — adjudication which can fairly be described as quasi-judicial followed by two levels of internal review — the Agreement seems to be precisely the type of contract in which the constraints of reasonableness and fairness could be implied into an otherwise private relationship. Yet this possibility is not mentioned even in passing.

Finally, it is interesting to note how Côté J, one of the Court’s hawks when it comes to judicial correction of errors of law by administrative decision-makers, sets out at paras. 130-139 a long list of reasons for judicial deference to the decisions of those charged with implementing the Agreement, reasons which apply to a wide range of administrative decision-makers. Equally, though, it is interesting how Abella J, long one of the Court’s supporters of the autonomy of administrative decision-makers, was willing to intervene to correct the error committed in this case, with little discussion of the factors which might have militated in favour of deference. At the fuzzy limits of public law, strange phenomena can be observed.

This content has been updated on May 13, 2019 at 23:48.

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