Brown v. Canada (Attorney General)

2019 BCCA 245 Brown v. Canada (Attorney General)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Brown v. Canada (Attorney General), 2019 BCCA 245 Date: 20190705 Docket: CA44826 Between: Ken Brown Appellant (Plaintiff) And Larry Philip Fontaine, et al. Respondents (Plaintiffs) And The Attorney General of Canada, et al. Respondents (Defendants) Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50 Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Garson The Honourable Madam Justice Fisher On appeal from: An order of the Supreme Court of British Columbia, dated September 15, 2017 (Fontaine v. Canada (Attorney General), 2017 BCSC 1633, Vancouver Docket L051875). Counsel for the Appellant: K. Ramji Counsel for the Respondent, The Attorney General of Canada: C.A. Coughlan B. Thompson A. Sabzevari Place and Date of Hearing: Vancouver, British Columbia May 17, 2019 Place and Date of Judgment: Vancouver, British Columbia July 05, 2019 Written Reasons by: The Honourable Madam Justice Fisher Concurred in by: The Honourable Madam Justice Newbury The Honourable Madam Justice Garson Summary: The appellant brought a claim within the Independent Assessment Process established under the Indian Residential Schools Settlement Agreement (IRSSA). Although the appellant was found to have been subject to serious sexual abuse, his claim was dismissed on the basis that he was not eligible to participate in the process.

The dismissal was upheld on review, re-review, and by the supervising judge. Held: appeal allowed; matter remitted to Chief Adjudicator for reconsideration. Judicial recourse is available only where there has been a failure to apply the terms of the IRSSA, or if there is a "gap" in the agreement that requires a remedy. The Supreme Court of Canada's decision in J.W. v. Canada (Attorney General), 2019 SCC 20, has not clearly established a scope for judicial recourse that is narrower than, or substantively different from, the principle established in prior appellate decisions. In this case, the supervising judge failed to assess whether the adjudicators had in fact applied the proper terms of the IRSSA. Reasons for Judgment of the Honourable Madam Justice Fisher: [1] The appellant brought a claim within the Independent Assessment Process (IAP) established under the Indian Residential Schools Settlement Agreement (IRSSA). His claim turned on the question of whether he was eligible to participate in the process, as either a student or a non-resident claimant. An adjudicator found that the appellant had been subject to serious sexual abuse but dismissed the claim on the basis that his circumstances did not fall under the IAP Model. Two subsequent reviewers and a supervising judge refused to interfere with the decision. This is an appeal from the supervising judge's refusal to grant

relief. [2] The primary issue in this appeal is the availability of recourse to the courts following eligibility decisions made and reviewed in the IAP. Background [3] The IRSSA is the largest and most complex class action settlement in Canada. It is a comprehensive settlement that has provided a process for the resolution of claims arising from the long and tragic history of abuse suffered by thousands of Indigenous children who attended Residential Schools across Canada. The background to and the nature of the IRSSA have been described in numerous decisions, most recently by the Supreme Court of Canada in J.W. v. Canada (Attorney General), 2019 SCC 20 [J.W.], and by this court in N.N. v. Canada (Attorney General), 2018 BCCA 105 [N.N.]. [4] Briefly, the IRSSA provides two avenues to compensation. The first is a "common experience" payment to all eligible former students; the second is an individual payment to eligible claimants who establish specific compensable harms. These latter claims are adjudicated in the IAP, which is governed by detailed rules set out as Schedule D to the IRSSA, often referred to as the IAP Model. [5] Individual IAP claims are managed and decided by highly trained, independent adjudicators who are tasked with assessing the credibility of each claim and determining whether compensation is payable under the terms of the IAP Model. The hearings are

conducted in an inquisitorial manner, with the goal to be respectful to claimants and conducive to obtaining a full description of their experiences. [6] There is a system of internal reviews. The first level permits review to determine (1) whether the adjudicator's decision contains a palpable and overriding error, or (2) whether the decision properly applied the IAP Model to the facts as found. The second level permits review only on the second basis, where the standard of review is correctness: Fontaine v. Canada (Attorney General), 2017 ONCA 26 at paras. 64-66 [Spanish IRS]. [7] It is well established that there is no right of appeal and no right to judicial review of an IAP decision: Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471 [Schachter]; Spanish IRS; N.N.; J.W. The only avenue for judicial consideration is "judicial recourse" as provided in the court orders that approved the IRSSA and the Court Administration Protocol (CAP) appended to those orders. The order approving the IRSSA in the Supreme Court of British Columbia provided for supervision as follows: 13. This Court shall supervise the implementation of the Agreement and this judgment and, without limiting the generality of the foregoing, may issue such orders as are necessary to implement and enforce the provisions of the Agreement and this judgment. [8] The CAP required the courts to designate two

Administrative Judges (one Eastern and one Western) and nine supervising judges. Parties to the IRSSA access judicial recourse through Requests for Direction (RFDs) made to a supervising judge. [9] The nature of this judicial recourse has been the subject of numerous decisions, beginning with Schachter, confirmed in Spanish IRS and N.N., and most recently discussed in J.W. This is addressed below. The appellant's claim [10] The appellant claimed that an adult male worker at the St. George's (Lytton) Residential School (the IRS) sexually abused him when he was attending classes of his provincial day school that were being held temporarily at the IRS due to a fire at the day school. He asserted that he was a "student" within the meaning of the IAP Model, but if he was not a student, his claim was compensable under the following five-part test: (a) Was the alleged perpetrator an adult employee of the government or a church entity which operated the IRS in question? If so, it does not matter whether their contract of employment was at that IRS. (b) If the alleged perpetrator was not an adult employee, were they an adult lawfully on the premises? (c) Was the Claimant under the age of 21 at the time of the assault? (d) Did an adult employee give the Claimant permission i) to be on the premises ii) for the purpose of taking part in school activities? (e) Did the assault arise from, or

was it connected to, the operation of the school? This test will be met where it is shown that a relationship was created at the school which led to or facilitated the abuse. If the test is met, the assault need not have been committed on the premises. The permission to be on the premises for an organized activity creates the circumstances in which an assault may be compensable if the other tests are met, but it does not also circumscribe the location in which an assault must have been committed to qualify as one which arose from or was connected to an IRS. [Schedule "D" IAP at 31-32, emphasis in original.] [11] To be accepted into the IAP, claimants who did not reside at an IRS, like the appellant, were required to sign a release. This was provided for under ss. 1.01 and 11.02(1) of the IRSSA: 1.01 "Non-resident Claimants" means all individuals who did not reside at an Indian Residential School who, while under the age of 21, were permitted by an adult employee of an Indian Residential School to be on the premises of an Indian Residential School to take part in authorized school activities prior to December 31, 1997. For greater certainty, Non-resident Claimants are not Class Members or Cloud Class Members; 11.02(1) The Approval Orders will order and declare that Non-resident Claimants on being accepted into the IAP, must execute a Release in the form set out in Schedule "P"

of this Agreement. [12] Schedule P, the "Final Legal Release" signed by the appellant, included the following terms: IN CONSIDERATION of my acceptance into the Independent Assessment Process which appears as Schedule D to the Indian Residential Schools Settlement Agreement, I, [the appellant], fully, finally and forever release and discharge separately and severally, each of [Canada and church entities] from any and all actions arising from or related to a) My participation in a program or activity associated with or offered at or through any Indian Residential School, and b) The operation of Indian Residential Schools Provided that this Release shall not preclude my participation in the Independent Assessment Process in accordance with its terms The adjudicator's decision [13] The adjudicator found that a male IRS employee had abused the appellant at a level 5, which was repeated, persistent and serious abuse. In doing so, she stated that the appellant gave "truthful, compelling evidence" and was "a courageous and remarkable man". However, she concluded that the abuse was not compensable because the appellant was not a "student" and the requirements of (d) and (e) of the test for non-students were not met. [14] The adjudicator's reasons for concluding that the appellant was not a "student" were as follows: The question of whether or not [the appellant] was a "student" can be

answered by considering whether any of the students in the temporary classes at the IRS were "students" under the IAP. First, I agree with Adjudicator Bolton's conclusions in Review Decision A-10881 in the context of a student-on-student claim, that "student" means an IRS student. Second, in 1972 the St. George's (Lytton) IRS was a student residence only. Its residents were students of provincial day schools. They were IRS residents, but not students. This remained so when Kumsheen Secondary provincial day school classes, taught by the same provincial teachers, were moved to the IRS building for two months that year because of a fire at Kumsheen. The students who lived at the IRS and the students who lived in the community were all provincial day school students, not IRS students, throughout. [Decision at 5, emphasis in original.] [15] With respect to the test for non-students, the adjudicator was satisfied that the perpetrator was an IRS employee or an adult lawfully on the IRS premises, and the appellant was under age 21 at the time and had permission to be on IRS premises. She expressly found that the sexual assaults happened in places, or proximate to places, the visiting day school students were permitted to be, and to the extent some of the incidents happened in private places this was because the perpetrator brought him to those places. Nonetheless, she concluded that

the temporary provincial day school classes on the IRS premises were not a "school" activity: In the context of the applicable test, "school" refers to an IRS, including one being operated as a student residence only, in this case the St. George's (Lytton) SR. Turning to the live issue in part d) of the compensability test, as IRS activity is more than something allowed to be conducted on IRS premises. The temporary classes were not a "school" activity inasmuch as they were provincial day school classes, when conducted at Kumsheen and in temporary space at the IRS because of the disruption of the fire. The activity was the same in either place and it was the activity of provincial day school classroom teaching, not IRS activity, which in this case would mean an activity of a student residence that no longer provided classroom schooling. This was not a St. George's (Lytton) SR activity and that is fatal to the compensability of this claim. [Decision at 7-8.] [16] The adjudicator equated the activity of Kumsheen with anyone who "happens to rent space from the IRS" as in a re-review decision (W-0557) that involved a school board. She inferred the permission of an adult IRS employee from "the organized nature of the temporary move of Kumsheen classes to the IRS premises" (Decision at 7-8 nn 1, 2). [17] The adjudicator also concluded that the sexual abuse did not arise from, or was

not connected to, the operation of the IRS: Again, the "school" is the St. George's (Lytton) SR, not the Kumsheen provincial day school. There is no evidence the abuser had any actual or authorized role with the temporary classroom operations, on behalf of the IRS or Kumsheen. He had access to [the appellant], not a relationship or form of authority. The access became available because provincial day school classes were temporarily conducted in proximity to IRS staff working at the student residence. The classroom teaching operations were not activities arising from or connected to the operation of the student residence. This is also fatal to the compensability of the claim. [Decision at 8.] [18] However, she noted that had the appellant been a resident of the IRS, his claim may have been compensable if the abuser's access to his victim was "as tied to the victim's ongoing presence as an IRS resident, as to his temporary attendance at Kumsheen day classes on the IRS premises". [19] The adjudicator therefore determined that the circumstances of the proven sexual abuse did not fall under the IAP Model. The first review [20] The appellant accepted the facts as found by the adjudicator and sought a review on the basis that she erred in her interpretation of the IAP Model. [21] The standard of this first review, as set out in the IAP Model at page 14, was for the Chief Adjudicator

or designate to determine whether an adjudicator's decision properly applied the IAP Model to the facts as found by the adjudicator, and if not, to correct the decision... [22] The review adjudicator expressed the standard of review at para. 17 of his decision: The applicable standard of review on the ground of failure to properly apply the IAP Model requires that the reviewing adjudicator give complete deference to the initial adjudicator's findings of fact. The reviewing adjudicator is to determine whether the initial adjudicator applied the IAP Model properly to the "facts as found by the [initial] Adjudicator." This means the reviewing adjudicator must defer to the initial adjudicator's findings of fact; the function of the reviewing adjudicator is therefore to determine whether the initial adjudicator's application of the Model to those facts was done "properly." I interpret the word "properly" to indicate a "correctness" standard. [23] The review adjudicator held that a proper interpretation of the IRSSA, followed consistently in review decisions, requires a purposive and contextual approach. He concluded that the adjudicator made no palpable and overriding error in finding that the appellant was not a student of an IRS and regarded this finding as correct. He also concluded that the adjudicator was correct in deciding that the temporary classes of the Kumsheen school

were not a school activity or connected to the operation of the IRS. His reasoning on this latter point was as follows: [25] The operation of "the operation of the school" has been the subject of consideration and past decisions. The Adjudicator relied on the ADR decision of W-0557. The key finding is set out at paragraphs 21 - 22: [21] It is my conclusion that the abuse experienced by the public school student at the hands of a public school <POSITION TITLE> in a space rented to the public school by Canada is not connected to the operation of an IRS. The relationship is simply one of land ownership. It cannot even be said that the Claimant's relationship to the abuser occurred as a result of residential school. Indeed, such an argument could only be advanced by students who were residents at Horden Hall. [22] It is difficult to conclude that a public school student who was physically struck by a public school <POSITION TITLE> is connected to the operation of an Indian Residential School when the institution was not a school at all, but a residence. Such a claim could only be made by a student who had been physically abused in the residence, not in the provincially operated classroom block. [26] This decision is consistent with my second review decision in T-10914 dated March 16, 2012. That case involved Bishop Pische School, a day school which at the relevant time was operated

by Northlands School Division of the province of Alberta. The provincial school was situate on lands owned by the Catholic Church where Holy Angels IR was located. [27] A consistent interpretation of "operation" of the school, is that it can only refer to the operation of the IRS, which at the time was operated as a student residence. Further, the operation of Kumsheen Secondary School was in no way connected to the operation of the IRS. The fact that Kumsheen temporarily used space in St. George IRS does not make such a connection. [Emphasis in original.] [24] He therefore determined that the adjudicator "properly applied the facts as she so found to the IAP Model" and dismissed the application for review. The re-review [25] The appellant sought a second review on the basis that the first review adjudicator made the same errors as the initial adjudicator. He took particular issue with the first review adjudicator's reliance on IAP decision W-0057, which he had argued was distinguishable. [26] The re-review adjudicator noted that this review was limited to the question of the proper interpretation of the IAP, and the standard was, again, correctness. [27] The re-review adjudicator agreed with the previous decisions on the question of whether the appellant was a student. He disagreed with the appellant's submission that he would not have been sexually assaulted on the IRS

premises by an IRS employee had he not been required to be there for educational purposes: [16] By a "but for" test of causation, this is correct. However, the coincidence of the provincial day school using IRS physical facilities, which very unfortunately exposed the Claimant to the predilections of the abuser, does not result in the Claimant being a student of the IRS as is required by the provisions of the IAP under paragraph A(1) of Appendix IX. The IAP requires more to establish liability for compensation than simply meeting a "but for test" between a claimant's presence or association with an IRS and an assault committed there [28] With respect to the requirement for a non-student to be on IRS premises "for the purpose of taking part in school activities", the re-review adjudicator noted that numerous IAP decisions have interpreted this quite liberally but that "not everything that occurs on the premises of an IRS are school activities". He acknowledged that the facts in IAP decision W-0057 were different but held that the core issue in that case was consistent with the initial adjudicator's finding: [19] The focus for the liability for compensation cannot be solely on the physical premises or facilities. Paragraphs (d) and (e) both make clear that in addition something else is required. In paragraph (d) the additional requirement is that a claimant must be on the

premises "for the purpose of taking part in school activities". As stated by the initial adjudicator, in the context of this test, "school' refers to the St. George's IRS, which was a student residence only. The teaching of the Kumsheen provincial school day students by employees of the provincial school clearly was not an activity of St. George's IRS. [29] The re-review adjudicator agreed with both the initial and review adjudicators that the requirements of paragraphs (d) and (e) of the five-part test for non-students were not met, as the appellant was not present "for the purpose of taking part in school activities" and the operation of Kumsheen school was "in no way connected to the operation of the IRS". Therefore, he confirmed that the appellant was "not eligible for compensation for the serious sexual abuse he experienced while a student at Kumsheen provincial day school carrying out its activities on IRS premises". The supervising judge's decision [30] The supervising judge (who is also the Western Administrative Judge) described the background of the IRSSA, the nature of the IAP and the role of IAP adjudicators, the IAP compensation rules and the process for review. She noted that the IAP provides a closed process for the determination of individual claims, with one in-person hearing and two levels of review. She also noted that in considering whether an adjudicator

properly applied the IAP Model to the facts, the standard of review is correctness: "If an adjudicator is incorrect in his or her application of the IAP Model to the facts, then the review adjudicator is meant to correct the decision" (at para. 20). [31] After reviewing the initial decision and the subsequent reviewing decisions and the positions of the parties, the supervising judge set out the principles applicable to the availability of judicial recourse to challenge IAP decisions. The appellate authorities available to her included Schachter, Spanish IRS and the Manitoba Court of Appeal decision in J.W., 2017 MBCA 54. She described (at para. 52) the "Schachter threshold" of judicial recourse as limited to "very limited" or "very exceptional" circumstances, where the decision of the Chief Adjudicator or his designate reflects a failure to comply with the terms of the IRSSA or the implementation orders. [32] She noted, at para. 55, her own explanation in Fontaine v. Canada (Attorney General), 2016 BCSC 2218 [Bundled RFDs], endorsed in Spanish IRS, that Schachter limits judicial recourse to exceptional circumstances where an IAP decision "reflects a patent disregard for the IAP Model" or is "so exceptionally wrong as to amount to a failure to apply the IAP Model". In limiting judicial recourse in this way, Schachter acknowledged that the IRSSA is a contract and parties to that

contract intended that access to the supervising judges be "extraordinarily limited" insofar as the IAP is concerned. The IAP represents a "complete code" and by limiting access to the courts to cases involving exceptional circumstances, "finality is preserved and the expertise of the Chief Adjudicator and those under his supervision is recognized". [Footnotes omitted.] [33] The supervising judge then reviewed the decision of the Manitoba Court of Appeal in J.W., which held that the Schachter threshold should be limited to "very exceptional cases" where the adjudicator failed to consider the correct terms of the IRSSA and the IAP Model, and should not extend to cases where the adjudicator interpreted the correct terms unreasonably. The supervising judge concluded that it was not necessary to determine whether this decision narrowed the circumstances in which judicial recourse can be invoked because she did not consider the appellant's RFD to involve exceptional circumstances as defined in any of the applicable decisions. [34] On the issue of whether the appellant was a "student", the judge held that there was no basis for the court to interfere. In her view, the conclusion was not "exceptionally unreasonable", having been made on the basis of factual findings that "were squarely within the jurisdiction of the Adjudicator and were upheld and deferred to by the Review and

Re-Review Adjudicator" (at para. 67). [35] With respect to the compensation test for non-student claimants, the judge reasoned as follows: [69] After reviewing the evidence, the initial Adjudicator concluded that the term "school activity" could only refer to an activity of the IRS, which operated as a student residence at the time. The [redacted] classes were an activity of a provincial day school, not the activities of a student residence. Likewise, the phrase "operation of the school" could only refer to the operation of the IRS. The operation of [redacted] was not connected to the operation of the student residence, and the fact that [redacted] temporarily used space in [redacted] did not make that connection. The Review and Re-Review Adjudicators agreed with this interpretation of the IAP. [70] In my view there is nothing exceptionally unreasonable about the interpretation of the IAP adopted by the adjudicators in this case. The IAP adjudicators applied the facts as found to the proper terms of the IAP. The interpretation of those terms is a task squarely within their jurisdiction. Significant deference is owed to the factual findings and interpretative choices of IAP adjudicators, and this case is no exception to that rule. As I explained in the Bundled RFDs: [181] Similarly, deference is warranted when it comes to legal interpretations of the IAP Model by adjudicators.

There is a parallel to be drawn to the deference that courts accord to tribunals interpreting their home statute. While I do not view the Supervising Courts' role on an RFD as analogous to conducting a judicial review of a tribunal decision, the principle is the same: subject matter expertise and familiarity with the relevant governing instruments - and with how they are applied in context - attracts deference. [71] Even if I did disagree with the interpretative choices made in this case, that is not a sufficient basis to interfere with the IAP decisions. As the Court of Appeal for Ontario held in Spanish IRS: [55] While the administrative judge may have disagreed with [the adjudicator's] conclusion, disagreement with the result reached does not equate to a failure to enforce the IRSSA agreement or apply the IAP model, thereby justifying judicial intervention. If it did, all IAP decisions would be appealable to the courts, the very thing Schachter forbids [Footnotes omitted, redacted in original.] [36] The supervising judge agreed with the re-review adjudicator that the "IAP requires more to establish liability for compensation than simply meeting a 'but for test' between the claimant's presence or association with an IRS and an assault committed there". To hold otherwise, she stated, "would be inconsistent with the terms of the IAP and undermine what the parties to the IRSSA

intended" (at para. 72). [37] Finally, the judge did not consider the re-review adjudicator's failure to consider an Interpretation Bulletin that referred to potential claims by day-school students to constitute exceptional circumstances warranting judicial recourse. Judicial recourse under the IRSSA [38] Schachter was decided at the appellate level in 2012, relatively early in the IRSSA process. There, the Ontario Court of Appeal described judicial recourse as being available in "very exceptional" or "very limited" circumstances. For the court, Rouleau J.A. held (at para. 78) that an RFD "may only be brought where it is alleged that the Chief Adjudicator's decision reflects a failure to enforce the provisions of the [IRSSA] and the implementation orders". This narrowly defined scope reflected the importance of the finality of decisions under the IRSSA and the relative expertise of the Chief Adjudicator (in that case in relation to the legal fee review process). [39] In 2017, the Ontario Court of Appeal endorsed this approach in Spanish IRS. Sharpe J.A., for the court, held that the same principle applied to IAP compensation decisions. He agreed (at para. 54) with the interpretation of Schachter described by the Western Administrative Judge, Brown J., in Fontaine v. Canada (Attorney General), 2016 BCSC 2218, that judicial recourse was limited to situations where a decision

under the IAP reflected "a patent disregard for the IAP Model's compensation rules, such as a failure to award compensation on the basis of the rubric it provides" or was "so exceptionally wrong as to amount to a failure to apply the IAP Model". [40] This same standard was endorsed by this court in N.N., where both majority and dissenting judgments accepted the principles in Schachter and Spanish IRS. MacKenzie J.A., for the majority, also accepted the Western Administrative Judge's subsequent articulation of the "Schachter threshold" in Fontaine v. Canada (Attorney General), 2017 BCSC 1633: see paras. 72-81. [41] In J.W., the Manitoba Court of Appeal, applying the Schachter principle, articulated the difference between a failure to consider the correct terms of the IRSSA and misinterpreting the correct terms (at paras. 51-52): An adjudicator cannot refuse or fail to consider the terms of the IRSSA and the IAP Model, or choose to consider others, as this would constitute a failure to comply with the IRSSA and the IAP Model (see Schachter at paras 53, 57 and the Bundled RFDs at para 183). The adjudicator is, however, entitled to interpret those terms, which is part of their adjudicative role (see Schedule D at pp 7, 31), and interpreting those terms, even if unreasonably, does not constitute a failure to consider the IRSSA and the IAP Model within the Schachter parameters of

jurisdiction. The reason that this distinction is important relates to the review provisions of the IRSSA and the IAP. By considering whether the adjudicator properly interpreted the terms of the IRSSA and whether the review and re-review adjudicators failed to correct the adjudicator's interpretative error, the [supervising judge] was carrying out the same function as would be carried out on appeal or judicial review of the re-review adjudicator's decision, which he clearly cannot do because there is no right of appeal or to obtain judicial review of that decision. [42] The court rejected the supervising judge's determination that his jurisdiction "was confined to ensuring that the Re-Review Adjudicator did not endorse a legal interpretation that is so unreasonable that it amounts to a failure to properly apply the IAP to the facts of a particular case" (at para. 49). [43] Since the supervising judge's decision, but before this appeal was argued, a majority of the Supreme Court of Canada reversed the decision of the Manitoba Court of Appeal in J.W. The parties in this appeal filed supplemental factums to address the implications of this decision. [44] J.W. was a split decision, with three sets of reasons. All seven judges generally accepted the principle in Schachter but differed in their approach to what constitutes a sufficient basis to justify judicial recourse. Three

judges rejected the approach taken by the Manitoba Court of Appeal and four judges adopted its approach. However, of the latter group, only two would have allowed the appeal. The implications of this decision are discussed below. At this point, I provide an overview of J.W.'s claim and each set of reasons in the Supreme Court of Canada. J.W. v. Canada (Attorney General), 2019 SCC 20 [45] In J.W., the appellant claimed compensation under category SL1.4, which addresses harm caused by Any touching of a student, including touching with an object, by an adult employee or other adult lawfully on the premises which exceeds recognized parental contact and violates the sexual integrity of the student. [46] An adjudicator accepted that when J.W. was a young student at an IRS, a nun had touched his genitals over his clothing while he had been standing in line waiting for a shower. However, his claim was rejected because the adjudicator concluded that the event would only have been compensable if the nun had acted with a sexual purpose. Both levels of internal review were unsuccessful. [47] The supervising judge concluded that the adjudicator's interpretation of SL1.4 was not reasonable, as sexual purpose was not a necessary element within the plain language of SL1.4 or case law defining "sexual assault". Because this error had not been corrected on review or re-review, he held that it

resulted in a failure to properly apply and enforce the terms of the IRSSA and the IAP to J.W.'s claim. As described above, the Manitoba Court of Appeal reversed this decision and J.W.'s application was dismissed in accordance with the adjudicators' decisions. Abella J. (Wagner C.J.C. and Karakatsanis J. concurring) [48] Abella J. concluded that the Manitoba Court of Appeal applied the test for judicial recourse too narrowly, thus preventing any meaningful judicial supervision of IAP decisions. In light of the purposes of the IRSSA (which include achieving "a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools" and a "promotion of healing, education, truth and reconciliation and commemoration"), she found that such an approach reduced judicial supervision "to a search for ensuring that the right section of the IAP is applied, rather than ensuring that the rights promised by the section are being delivered" (at para. 33). [49] Abella J. reviewed Schachter, Spanish IRS and N.N., noting that each applied the "exceptional circumstances" threshold, which, in N.N., included a "gap" in the IRSSA. She confirmed that these appellate authorities [27] have thus indicated that courts may intervene in relation to IAP adjudications when exceptional circumstances are present, a threshold which is met if there is either a failure to apply the terms of the

Agreement, including the Approval and Implementation Orders, or if there is a "gap" in the Agreement. [50] She agreed that there are compelling reasons to set a high bar for judicial intervention in the IAP context but also recognized that the parties considered ongoing judicial supervision to be necessary: [30] Without ongoing judicial supervision, the Agreement would not have been recognized. In overseeing the administration and implementation of the Agreement, therefore, courts have a duty to ensure that the claimants receive the benefits they bargained for. The provisions of the Approval and Implementation Orders contemplate ongoing recourse to the courts, with judges supervising the Agreement to ensure that the implementation and administration of the Agreement take place in the way the parties agreed. [31] While the parties do not have a broad right to judicial intervention, they do have a right to the implementation of the terms of the settlement they bargained for. Judicial supervision plays a critical role in ensuring that the claimants receive the benefits that they were promised. The obligations in the Agreement must be read in light of the Agreement's spirit -- to address the "damage inflicted by, or as a result of, [Canada's] long-standing [Residential Schools] policy" (Baxter, at para. 2). [51] Abella J. considered Schachter a useful starting point, in that

"judges should intervene when there is a failure to apply or implement" the terms of the IRSSA: [32] Unauthorized modifications of the Agreement are encompassed by this threshold. If an adjudicator changes the terms or requirements of the plain language of the Agreement, this will amount to a failure to apply or implement the terms of the Agreement. Courts have a duty to ensure that the Agreement is implemented in accordance with the intentions of the parties as reflected in the Agreement's terms. In determining whether an adjudicative decision rises to this threshold, Supervising Judges should be guided by the plain language of the Agreement, viewed in light of its remedial, benefit-conferring objectives. [Footnote omitted.] [52] Noting that finality and expediency were important goals, Abella J. considered it "crucial" to recognize the choice claimants made to forfeit their litigation rights and participate in the IAP: [34] Given this trade-off, it is paramount that the agreed-upon terms of the IAP Model are applied and implemented in a way that is consistent with the parties' intentions. The courts' supervisory power must permit intervention when it is necessary to ensure that the benefits promised are delivered. [53] She articulated the judicial role to supervise the administration and implementation of the IRSSA as follows: [35] In exercising this supervisory role in the

Requests for Directions context, judges can intervene if there has been a failure to apply and implement the terms of the Agreement. In determining whether this failure exists, Supervising Judges will focus on the words of the Agreement, so that the benefits promised to the class members are delivered. [54] On the facts of J.W., Abella J. agreed with the supervising judge's conclusion (overturned by the Court of Appeal) that the initial adjudicator's interpretation of IAP Category SL1.4 (sexual touching), which imported a requirement of sexual intent, amounted to an unauthorized amendment to the IAP and thus constituted a failure to apply and implement the IRSSA. She disagreed with Côté J. that recourse to a gap in the IRSSA was necessary for court intervention (at para. 52). It was her view that J.W.'s was precisely the type of compensable claim contemplated by the parties to the IRSSA and that failure to correct the initial adjudicator's interpretation "would unacceptably undermine the whole purpose of the Agreement" (at para. 54). [55] The supervising judge had remitted the matter back to a first level IAP adjudicator for reconsideration. The Reconsideration Adjudicator decided in J.W.'s favour and awarded him compensation. Before this decision was implemented, Canada appealed the supervising judge's decision, which, as noted above, was reversed by the Manitoba Court of

Appeal. Abella J. would have allowed the appeal and reinstated the decision of the Reconsideration Adjudicator. Côté J. (Moldaver J. concurring) [56] Côté J. endorsed the approach taken by the Manitoba Court of Appeal in limiting the scope of judicial recourse in respect of IAP decisions. In her view, the parties to the IRSSA clearly intended that the interpretation of the terms of the IAP fall within the adjudicator's exclusive jurisdiction, and judges cannot take on the role the parties assigned to those adjudicators. [57] Nonetheless, Côté J. found that judicial recourse was required in the circumstances of the case, which she described as "a unique situation for which the IRSSA makes no provision". At the hearing before the Supreme Court, the Chief Adjudicator conceded that J.W.'s claim was wrongly decided and the decisions made by the adjudicators were "aberrant". As the Chief Adjudicator was not able to reopen the claim, it was appropriate for the court to step in "to fill this procedural gap and ensure a fair outcome for J.W. that is in keeping with the purpose of the IRSSA" (at para. 61). [58] Côté J. described the availability of judicial recourse at paras. 123-24: [123] On the question of the supervising courts' jurisdiction to consider errors in the interpretation of the IAP, I would affirm the approach taken by the Manitoba Court of Appeal. Parties may seek judicial

recourse only in cases where the IAP adjudicator failed to apply the terms of the IRSSA, as this constitutes a failure to comply with the IRSSA and the IAP Model (Man. C.A. Reasons, at para. 51; Schachter, at paras. 53 and 57; Bundled RFD, at para. 183). While an adjudicator's decision is reviewable where he or she applied an inapplicable term or failed to apply an applicable term, the interpretation of the terms falls squarely within the adjudicator's adjudicative role (Sch. D, art. III(a)(v) and App. X). [124] Put another way, as long as it can be said that an adjudicator has turned his or her mind to the compensation category raised by the claimant, then the adjudicator has applied the terms of the IRSSA. Since the parties have expressed a clear intention to grant IAP adjudicators exclusive jurisdiction to interpret the terms of the IRSSA and the IAP, it must be accepted that an adjudicator who has interpreted these terms, even if a court considers the interpretation unreasonable, has not failed to apply the terms (Man. C.A. Reasons, at para. 51). [Emphasis added.] [59] She considered Schachter, Spanish IRS and Bundled RFDs to be instructive in relation to the high jurisdictional threshold for judicial recourse of IAP decisions and explained why such access should be construed narrowly: (1) this approach honours the intentions of the parties to the IRSSA; (2) in entering

into the IRSSA, claimants relinquished their right to have their claims resolved by the courts in favour of a process with various compensatory and non-compensatory benefits; (3) no party can argue that the scheme should be infallible; and (4) a broad right to judicial recourse would be contrary to the objective of efficient and timely resolution of the disputes with finality; it would allow supervising judges to engage in the same exercise as reviewing adjudicators, resulting in an additional layer of review outside the intended closed process. [60] Côté J. considered that Schachter did not set "exceptional circumstances" as a test for judicial recourse but rather used that term to describe the limited nature of such recourse in respect of IAP decisions. She agreed with the Manitoba Court of Appeal that the supervising judge had erred in scrutinizing the adjudicator's interpretation of SL1.4 in the IAP and substituting his own, thereby engaging in the same analysis that the parties assigned to IAP adjudicators. She did not consider that the adjudicator's interpretation amounted to a failure to apply that provision. [61] However, Côté J. also acknowledged that circumstances may arise that were not foreseen by the parties and are therefore not provided for in the IRSSA: [141] As the Chief Adjudicator observes, the parties did anticipate that court involvement might be necessary,

not to interpret the IAP Model, but to ensure that adjudicators can in fact implement the IAP to achieve the intended results As stated above, the parties have clearly turned their minds to the question of whether a right to appeal or to seek review of IAP decisions is available. However, should a situation arise which was not contemplated by the parties, courts must have the power to intervene to ensure that the parties receive the benefits of the agreement, i.e., what they bargained for. [Emphasis added.] [62] She noted the decision in N.N. as a clear example, in which a majority of this court held that the supervising judge had the jurisdiction to direct the reopening of a settled IAP claim, a power not given to the Chief Adjudicator, where new information had subsequently come to light and which might have resulted in a different decision had it been available. In a similar vein, Côté J. considered that J.W.'s claim gave rise to "a unique dilemma for which the IRSSA provides no internal recourse" and which therefore required the court to craft a remedy: [153] Certain concessions made by the Chief Adjudicator at the hearing before this Court have exposed a gap in the IRSSA's provisions. Specifically, the Chief Adjudicator has no authority to reopen J.W.'s claim despite his conclusion that the decisions on the claim are "aberrant". The Chief Adjudicator's inability to remedy

such an error in IAP decisions is clearly inconsistent with the role conferred upon him by the parties of ensuring consistency in the application of the IAP. This is certainly a situation in which the courts can step in to provide a remedy that is consistent with the IRSSA's objective of promoting a "fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools" (see B in the recitals of the IRSSA). [63] Côté J. noted (at paras. 159-160) that the Chief Adjudicator is tasked under the IRSSA with ensuring consistency among the decisions of adjudicators in the interpretation and application of the IAP Model in three ways: (1) implementing training programs and administrative measures, (2) proposing instructions to the IAP Oversight Committee, and (3) through his role in the internal review process. She described the final level of review as follows: [160] As stated above, the final level of review (re-review) is conducted by the Chief Adjudicator or his designate. While in this case the re-review was conducted by a designate and not by the Chief Adjudicator himself, "designates" are identified in the scheme as being approved by the IAP Oversight Committee to exercise what the IAP refers to as "the Chief Adjudicator's review authority". It is evident that the scheme places the Chief Adjudicator at the apex of the review process and gives him the authority

to ensure that adjudicators are properly applying the IAP Model. [64] She considered the Chief Adjudicator's concession "that the decisions of the adjudicators in this case were 'aberrant' and did not reflect the direction provided by former Chief Adjudicator Ish" to be significant, as it indicated that the scheme had broken down such that the Chief Adjudicator could not ensure that the terms of the IAP had been properly applied in J.W.'s case (at para. 161). In her view, the sequence of events had exposed a gap in the IRSSA and it was the role of the court to fill it. In this sense, Côté J. agreed with Abella J. that "courts have a duty to ensure that the claimants receive the benefits they bargained for" (at para. 162). Thus, she would have allowed the appeal and ordered the same remedy as provided by Abella J. Brown J. (Rowe J. concurring) [65] Brown J. concurred with Côté J. with respect to the jurisdiction of supervising courts and the scope of judicial recourse but dissented in the result. He agreed that the supervising judge erred in scrutinizing the interpretation of SL1.4 in the IAP but disagreed that any gap existed in the IRSSA to allow the court to remit J.W.'s claim for reconsideration. [66] According to Brown J., Côté J.'s reasons were undermined by her disposition of the appeal. He rejected the idea that Côté J. was "remedying injustice", as he viewed justice as

being served "by respecting and enforcing the terms of a voluntary agreement between the parties, including the procedural and substantive rules and the jurisdictional boundaries upon which they agreed" (at para. 188), in accordance with the principle expressed in Spanish IRS. [67] Brown J. considered the concession made by the Chief Adjudicator to have limited value, signifying only that he had failed to properly discharge his final review obligations under the IRSSA. He appreciated that the "plainly incorrect" interpretation of SL1.4 adopted by the initial adjudicator and "(somehow) affirmed by two review adjudicators" was "difficult to let pass" but concluded that "it was the result compelled by law, even if it obliges us to avert our nostrils" (at para. 196). On appeal [68] The appellant submits that the central issue in this appeal is the availability of judicial recourse. He says that the supervising judge converted legal issues regarding the interpretation of the IRSSA into factual findings, and thereby applied the wrong standard of review. He contends that the judge afforded far too much deference to what were legal errors made below and disregarded the supervisory jurisdiction of the court to ensure that the IRSSA is properly and fairly implemented. [69] Applying J.W., the appellant submits that this case was an exceptional circumstance in that the initial adjudicator

failed to give the plain and ordinary meaning to the terms "student" and "school activities", thereby failing to apply the terms of the IAP Model. He further submits that there is a gap in the IRSSA relating to the review and re-review adjudicators' failure to consider an Interpretation Bulletin relevant to the eligibility criteria for non-resident claimants, which requires the court to provide a remedy. [70] Canada submits that the supervising judge correctly articulated the threshold for judicial recourse from an IAP re-review decision, and properly applied that threshold in determining that there were no exceptional circumstances warranting judicial recourse. Canada says that the judge's approach is consistent with the reasoning of both Abella and Côté JJ. in J.W. The standard of review [71] In Canada (Attorney General) v. Fontaine, 2017 SCC 47 [SCC Records Decision], the Supreme Court established that the standard for appellate review of a supervising judge's interpretation of the IRSSA is the standard of deference applicable to contractual interpretation as a question of mixed fact and law: [35] The interpretation of the IRSSA is a question of mixed fact and law reviewable for palpable and overriding error. Contractual interpretation generally involves questions of mixed fact and law subject to appellate deference (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53,

[2014] 2 S.C.R. 633, at paras. 50-51 and 55; Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 21). This rule is not absolute. It does not apply, for example, to the interpretation of a standard form contract, where its interpretation has precedential value, and there is no meaningful factual matrix specific to the particular parties to assist the interpretation process (Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 46). In our view, however, the general rule stated in Sattva applies here, such that the palpable and overriding error standard governs appellate review of the supervising judge's interpretation of the IRSSA. While the IRSSA undoubtedly has "very significant implications for Canada and our aboriginal peoples" (C.A. reasons, at para. 294), it is at root a contract, the meaning of which depends on the objective intentions of the parties. As the majority at the Court of Appeal observed, the question of impact is distinct from precedential value. While the supervising judge's interpretation of the IRSSA will impact thousands of IAP claimants, it will have no significant precedential value outside of the IAP due to the IRSSA's sui generis nature. And, as shall become apparent below, the factual matrix looms large in ascertaining the meaning of this particular

contract. [72] However, in J.W., Côté J. held (at paras. 110-12) that the standard of review in respect of the jurisdiction of a supervising judge to assess IAP decisions is correctness. This was based on the principle in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, as the answer would have precedential value for all claims under the IAP. She distinguished SCC Records Decision on the basis that the supervising judge's interpretation of the IRSSA in J.W. did not involve his interpretation of the agreement but rather his jurisdiction to "arrive at his own interpretation of the IRSSA and substitute it for that of the IAP adjudicators". Brown J. concurred with these paragraphs. [73] In this appeal, the supervising judge's determination of her jurisdiction to assess IAP decisions is to be reviewed on the standard of correctness, but insofar as her decision involved an interpretation of the eligibility criteria under the IRSSA, the standard is that of palpable and overriding error. Analysis The scope of judicial recourse [74] On the question of the supervising judge's jurisdiction, the judge made no error on the basis of the jurisprudence available to her at the time. She considered the Schachter threshold to limit judicial recourse to exceptional circumstances such as where an IAP decision "reflects a patent disregard for the IAP Model" or is "so

exceptionally wrong as to amount to a failure to apply the IAP Model". She found it unnecessary to determine if the decision of the Manitoba Court of Appeal in J.W. narrowed the circumstances in which judicial recourse can be invoked as she did not consider the appellant's RFD to involve exceptional circumstances as defined in any of the applicable decisions. [75] Given that the appeal in J.W. was allowed by the Supreme Court of Canada, it is necessary to assess the implications of that decision in relation to the jurisdiction of supervising judges to hear and decide RFDs from decisions made under the IAP Model. [76] The appeal was allowed by a majority of five judges, but there was disagreement among them as to the basis for doing so. The reasons of Abella J. form a majority within the five. However, the reasons of Côté J. form the majority in respect of the articulation of the scope of judicial recourse under the IRSSA given the concurrence of Brown and Rowe JJ. on that aspect of her reasons. [77] Both sets of reasons confirm the limited scope of judicial recourse from IAP decisions, originally articulated in Schachter. Both confirm a threshold that is met either if there is a failure to apply the terms of the IRSSA, or if there is a "gap" in the agreement. Abella J. recognized both the high bar for judicial intervention and the need for meaningful supervision. Côté J. also

recognized the high bar but limited a failure to apply the terms of the IRSSA to circumstances where an adjudicator either applied an inapplicable term or failed to apply an applicable term, leaving for the adjudicators' exclusive jurisdiction the interpretation of the terms. Both confirmed the right to have the terms of the IRSSA properly implemented. [78] In my analysis, the difference between the two sets of reasons is this. [79] Abella J. concluded that the adjudicator's importing of a requirement of sexual intent under SL1.4 of the IAP Model amounted to an unauthorized amendment to the IAP, constituting a failure to apply and implement the IRSSA in light of its remedial, benefit-conferring objectives and a failure to deliver the benefits promised, thus justifying judicial intervention. [80] Côté J. concluded that the adjudicator's importing of a requirement of sexual intent under SL1.4 of the IAP Model constituted an error in interpreting the IAP Model but did not constitute a failure to apply the IRSSA. She justified judicial intervention on the basis of the Chief Adjudicator's concession before the court that the error was aberrant but he was unable to remedy it and thereby provide consistency in the application of the IAP Model, thus exposing a gap in the process. [81] While in either case, judicial recourse is very limited, it is my view that the test adopted by Côté

J. is narrower than that applied by Abella J. and the consideration of exceptional circumstances as articulated in the prior appellate authorities. That broader test permitted judicial recourse for "exceptionally wrong" interpretations made by IAP adjudicators. Under Côté J.'s analysis, any unreasonable interpretation of the IAP Model is shielded from judicial intervention provided the adjudicator applied the relevant terms. Otherwise, the courts may only intervene where there is some kind of gap in the IRSSA that results in the Chief Adjudicator being unable to remedy a serious error in carrying out the IAP Model. [82] Admittedly, under the previous jurisprudence, determining what constituted an "exceptionally wrong" interpretation that justified judicial intervention was not clearly defined. The test adopted by Côté J. clarifies this to some extent. However, her conclusion that there was a gap in the IRSSA that required a remedy for J.W. is an important element of the jurisdictional question, but one that did not have majority support. In the opinion of Brown J., her reasons setting out the test were undermined by her disposition. [83] Respectfully, Côté J.'s conclusion that there was a gap in the IRSSA that required a remedy for J.W. is difficult to reconcile with the narrow test she described. She relied on the Chief Adjudicator's concession during the hearing of the appeal

that all three IAP decisions were aberrant and did not "reflect the direction provided by former Chief Adjudicator Ish". However, that "direction" was a statement in a re-review decision that found "no requirement in the IAP that the actor possessed a sexual intent before liability can be found for a sexual assault". This followed the IAP Model in which two review adjudicators - designates of the Chief Adjudicator who exercise his review authority - had concluded that the initial adjudicator had not misapplied the IAP Model. The internal review process had run its course, as in this case. If the Chief Adjudicator has no authority at that point to interfere in the face of what can be characterized as an "exceptionally wrong" interpretation of the IAP Model by his designates, it is difficult to understand why the supervising judge would not be able to intervene, regardless of a concession made long after the fact by the Chief Adjudicator. Either way, the Chief Adjudicator failed to properly discharge his final review obligations under the IAP Model and the appellant did not obtain the benefits bargained for. Either way, judicial recourse is the only avenue to obtaining a remedy. [84] In my view, given the divergence of opinion among the court, J.W. has not clearly established a scope for judicial recourse that is narrower than, or substantively different from, the principle

established in Schachter and further articulated in Spanish IRS and N.N. All of the authorities, including J.W., confirm that judicial recourse is available only where there has been a failure to apply the terms of the IRSSA, or if there is a "gap" in the agreement that requires a remedy. [85] In this case, the issue involves terms of the IAP Model that determine whether a claimant fits within a class or is otherwise eligible to participate in the IRSSA at all. I view this as somewhat different from a term in the IAP that defines a compensation category, as in J.W. I would characterize an interpretation of the eligibility requirements in the IAP Model that fails to consider related terms of the IRSSA in the context of its purposes and remedial objectives to constitute a failure to apply the terms of the agreement. Did the supervising judge err? [86] The supervising judge restricted her jurisdiction to intervene to exceptional circumstances amounting to a failure to apply the IAP Model. On this jurisdictional question she was correct, whether "exceptional circumstances" is characterized as a threshold test or an empirical description. [87] The basis of the supervising judge's refusal to intervene is her conclusion that (1) the interpretation of the terms of the IAP Model is a task squarely within the jurisdiction of the IAP adjudicators, and (2) they applied the facts as found

"to the proper terms of the IAP". This decision is subject to review on palpable and overriding error. [88] The appellant asserts that this case involves a gap that was not contemplated by the parties, arising from what he characterizes as new information not considered on review. He also asserts that the interpretation of the IAP by the adjudicators constituted an unauthorized modification or amendment of the IRSSA. Was there a gap in the IRSSA? [89] Relying on J.W. and N.N., the appellant bases this submission on the failure of the review and re-review adjudicators to consider an Information Bulletin that was not before the initial adjudicator. He says that this Bulletin indicated the appellant would have been entitled to compensation as either a day student or a non-resident claimant. [90] While not referring to this as a "gap", the supervising judge did consider the appellant's argument in relation to the Information Bulletin. She rejected it on the basis that it would not have affected the re-review adjudicator's decision and did not constitute an exceptional circumstance. I see no error in this conclusion, nor do I see that the circumstances equate with those in either J.W. or N.N. [91] In J.W., two review adjudicators concluded that the initial adjudicator had not misapplied the IAP Model. The same process occurred in this case. However, what changed the course in J.W.

was Côté J.'s reliance on the Chief Adjudicator's concession during the hearing of the appeal that all three IAP decisions were "aberrant". No such concession has been made in this case. [92] N.N. involved two RFDs, one by N.N. and the other by N.R. The appeal was allowed only in respect of the RFD of N.R. In her case, new information became available after her initial IAP hearing that undermined the adjudicator's conclusion that she had not been abused. The re-review adjudicator concluded that the new information would have had a "very significant impact" on the adjudicator's reasoning had it been available, but he was limited by the IAP Model that restricted all reviews to be on the record, with no new evidence permitted. Thus, the gap identified by MacKenzie J.A., writing for the majority, was the inability of the Chief Adjudicator to consider new evidence. [93] MacKenzie J.A. agreed with previous authority that supervising courts have jurisdiction to re-open claims on a case-by-case basis, and that this authority is to be exercised only in rare and exceptional cases: see Fontaine v. Canada (Attorney General), 2014 ONSC 283; Fontaine v. Canada (Attorney General), 2018 BCSC 63. She concluded that the supervising judge erred in her assessment of the nature and significance of the new information and held: [194] Refusing to reopen this case would be discordant with the

objective intention of the parties to the IRSSA of promoting a "fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools". [94] The Information Bulletin relied on by the appellant here is a "Fact Sheet", dated June 2011, which addressed "IAP compensation for day students". It stated in part: The IAP may compensate you as a former day student at an IRS. As well you may receive compensation if you were under the age of 21 and allowed on school premises for a school activity. [95] As this language is consistent with the terms of the IAP eligibility criteria, I agree with the supervising judge that consideration of the Information Bulletin would not have affected the result. This is not the same kind of new information considered in the case of N.R. Whether the appellant was a "student" or had been allowed on the IRS premises "for a school activity" had to be determined on the basis of the IAP Model and the Information Bulletin added nothing new. Was there a failure to apply the terms of the IRSSA? [96] The appellant submits that all of the IAP adjudicators failed to give the plain and ordinary reading to the words "student" and "school", neither which are defined in the IRSSA. He says that their interpretations constituted a modification or amendment of the agreement, contrary to the intention of the parties to compensate children who were lawfully on

IRS premises and sexually assaulted by federal employees or agents. He also asserts that he is eligible for compensation as a "non-resident claimant", a term which is defined in the IRSSA: "Non-resident Claimants" means all individuals who did not reside at an Indian Residential School who, while under the age of 21, were permitted by an adult employee of an Indian Residential School to be on the premises of an Indian Residential School to take part in authorized school activities prior to December 31, 1997. For greater certainty, Non-resident Claimants are not Class Members [97] In essence, the appellant contends that the adjudicators grossly misinterpreted the IRSSA by allowing the factual matrix to overwhelm and distort its proper interpretation. [98] The supervising judge held that the adjudicator's conclusion that the appellant was not a "student" for the purpose of the IAP was not "exceptionally unreasonable", having been made on the basis of factual findings that "were squarely within the jurisdiction of the Adjudicator and were upheld and deferred to by the Review and Re-Review Adjudicator" (at para. 67). I see no error in her assessment of this. The language used in the IAP Model indicates that a student is a "resident or student of an IRS". The fact that the appellant was not a resident of the IRS and was a student of Kumsheen provincial day school is not in

dispute. [99] With respect to the requirements of "school activity" and the phrase "operation of the school", the supervising judge found "nothing unreasonable" about the interpretation adopted by the adjudicators. She explained only that they had applied the facts to the "proper terms of the IAP" and accorded deference to their findings and interpretive choices. On this aspect, it is my view that the supervising judge failed to assess whether the adjudicators had in fact applied the proper terms of the IRSSA. [100] This is not a case where the adjudicators simply had to turn their minds to a compensation category in the IAP Model. They had to consider not only the eligibility criteria in the IAP Model, but also the definition of "Non-resident Claimants" in the IRSSA, s. 11.02 (1) of the IRSSA, which required Non-resident Claimants to execute a release "on being accepted into the IAP", and the terms of the Release signed by the appellant. Nowhere does the judge assess whether the adjudicators considered all of these provisions in relation to each other and in the context of the purposes of the IRSSA, which, as other appellate decisions have noted, include achieving "a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools". [101] It is important to restate the compensation claims criteria for non-students as set out in the IAP Model: (a) Was the

alleged perpetrator an adult employee of the government or a church entity which operated the IRS in question? If so, it does not matter whether their contract of employment was at that IRS. (b) If the alleged perpetrator was not an adult employee, were they an adult lawfully on the premises? (c) Was the Claimant under the age of 21 at the time of the assault? (d) Did an adult employee give the Claimant permission i) to be on the premises ii) for the purpose of taking part in school activities? (e) Did the assault arise from, or was it connected to, the operation of the school? This test will be met where it is shown that a relationship was created at the school which led to or facilitated the abuse. If the test is met, the assault need not have been committed on the premises. The permission to be on the premises for an organized activity creates the circumstances in which an assault may be compensable if the other tests are met, but it does not also circumscribe the location in which an assault must have been committed to qualify as one which arose from or was connected to an IRS. [Emphasis in original.] [102] It may be of some significance that the definition of "Non-resident Claimants" in the IRSSA (cited above) reflects only (a), (c) and (d) of these criteria. It may also be of some significance that the Release, written in slightly different and fairly broad terms,

requires the appellant to give up his right to sue in respect of all claims or causes of action arising from or related to his participation "in a program or activity associated with or offered at or through any Indian Residential School". In my opinion, these provisions underscore the need to interpret the eligibility criteria in the IAP in the context of the relevant terms of the IRSSA as well as its broader principles and objectives. [103] There was no question that the appellant satisfied (a), (b), (c) and (d)(i). With respect to (d)(i), the initial adjudicator found (by inference) that the appellant had the permission of an adult IRS employee to be on the IRS premises from "the organized nature of the temporary move of Kumsheen classes to the IRS premises". Yet she failed to consider what constituted "school activities" under (d)(ii) and confined her inquiry to the word "school", restricting it to an IRS, including an IRS that did not operate as a school. She also failed to consider the meaning of "authorized school activities" in the definition of "Non-resident Claimants" in the IRSSA, and the meaning of "a program or activity associated with or offered at or through any Indian Residential School" in the Release. [104] The adjudicator also confined the question in (e), whether the assault arose from or was connected to the operation of the school, to the fact that "[t]he

classroom teaching operations were not activities arising from or connected to the operation of the student residence". She did not consider whether (e) was relevant to the inquiry as a necessary element in this case given the definition of "Non-resident Claimants" in the IRSSA. [105] Neither of the review adjudicators, who had the authority to review for correctness, considered whether this parsing of the meaning of "school" and "the operation of the school" in (d) and (e) of the IAP was a proper application of the IAP Model without considering the definition of "Non-resident Claimants" in the IRSSA or the terms of the Release. Nor did they consider if the parties to the IRSSA intended to exclude a claimant who had been sexually assaulted by an IRS employee, given permission by an adult IRS employee to be present on IRS premises, for a school activity located on IRS premises because of an "organized" temporary move of provincial day school activities. Instead, they both relied on IAP decision W-0057 as being consistent with the adjudicator's interpretation of (d) and (e), without taking into account the fact that the assault in W-0057 was perpetrated not by an IRS employee, but by a public school employee, or the statement in that case that a claim could only have been made by a student (in the context, a public-day-school student) who had been physically abused in the

residence. [106] I am mindful that it is not for the supervising judge, or this court, to engage in the same analysis that the parties assigned to IAP adjudicators. However, in my view, the supervising judge in this case placed undue emphasis on the findings of fact, which have never been disputed, and gave far too much deference to the "interpretive choices" of the adjudicators, without assessing whether they had applied the proper terms of the IAP and the IRSSA, all in the proper context. Even within the confines of her jurisdiction, judicial supervision demands more than that. [107] I do not consider this a case of mere disagreement with the adjudicator's conclusions. In the context of this case, it is my view that parsing the meaning of "school" and "the operation of the school" as described above constituted a failure to apply the terms of the IRSSA. [108] I would therefore allow the appeal and remit the matter to the Chief Adjudicator for reconsideration. Costs [109] The appellant seeks to recover his costs on a full indemnity basis given the considerable length of time this matter has taken throughout the review and court processes. While I understand how difficult this must have been for the appellant, I do not consider it appropriate to award full indemnity or special costs. I would award costs to the appellant under the usual rule. "The Honourable Madam Justice Fisher" I AGREE: "The Honourable Madam Justice Newbury" I AGREE: "The Honourable Madam Justice Garson"