TORONTO — An Indigenous man who was denied compensation on the basis that a nun had no sexual intent when she grabbed his genitals takes his case to Canada's top court this week amid a tense power struggle between a judge overseeing implementation of the Indian residential school class-action settlement and the head of the process that awards payouts to victims.
The man, identified only as J.W., was a residential school student in Manitoba as a boy. In a claim accepted as factual, he said he was in line for a shower when a nun grabbed and squeezed his genitals, causing him distress. J.W. sought compensation under the independent assessment process set up as part of a class-action settlement over the schools.
An adjudicator turned him down because he had failed to prove the nun had a "sexual purpose." J.W. argued he shouldn't have needed to prove her intent but his attempts at redress through the assessment review process failed.
J.W. turned to the judge of the Court of Queen's Bench supervising the class-action settlement in Manitoba, who decided the original decision was unreasonable and the reviews overseen by the chief adjudicator had failed to fix the problem. The judge ordered a new compensation hearing.
However, the Government of Canada successfully appealed to the Manitoba Court of Appeal by arguing the judges supervising the settlement have almost no authority to review the compensation decisions.
J.W. appealed to the Supreme Court of Canada, which takes up the complex case on Wednesday. The outcome could affect other victims as the residential school compensation process winds down.
In submissions to the top court, J.W. argues the Manitoba Appeal Court ruling would place the chief adjudicator beyond judicial scrutiny — even if his decisions are unreasonable.
"To be bound by rules is not to make an empty gesture of applying them, or to apply them in an irrational or absurd way," J.W. argues in his factum before the top court.
In response, Chief Adjudicator Dan Shapiro and the federal government argue it would be disruptive to allow the courts to second-guess compensation decisions — except in the narrowest of circumstances.
J.W.'s fight has thrown into sharp relief the battle between the judges overseeing implementation of the settlement and Shapiro, who insists the courts have almost no jurisdiction to review his decisions.
"The function of the courts in supervising the (independent assessment process) is not to review individual decisions for error or unreasonableness," Shapiro writes in his Supreme Court factum.
Shapiro's stance has long angered Justice Paul Perell, the Ontario Superior Court judge who shares responsibility for supervising implementation of the multibillion-dollar class-action agreement.
In a blistering order early last month, Perell accused Shapiro of taking partisan positions, of challenging decisions made by supervising judges, and of putting himself above judicial scrutiny in "open defiance" of the court.
"The chief adjudicator's actions amount to insubordination of the courts," Perell wrote. "His conduct runs the risk of compromising his impartiality or of having the risk of an appearance of a compromised impartiality."
Perell ordered Shapiro to cease involvement in J.W.'s appeal as well as in two other appeals involving claimants in British Columbia.
Shapiro balked at the judicial slap-down. Arguing Perell had been unfair by not first hearing from him, he won a stay of the order from Ontario Appeal Court Justice Robert Sharpe pending a full appeal hearing Nov. 23.
"Of particular concern is the finding in the direction that the chief adjudicator is guilty of 'insubordination of the courts'," Sharpe said. "This is a finding of serious misconduct made against a lawyer."
The stay left intact Shapiro's role in fighting J.W.'s claim before the Supreme Court, prompting J.W. to file a new motion. He wants the high court to force Shapiro to step aside, saying Perell's reasoning was persuasive.
Shapiro is strenuously resisting removal from J.W.'s appeal, saying he has behaved appropriately and the Ontario's top court will deal with the Perell situation in due course.
In the interim, Perell has rescinded his order and issued a new one. This time, he's directing two other judges involved in the class-action settlement to take up the matter directly with Shapiro at a full hearing. Among the issues: "Has the chief adjudicator taken partisan positions before courts, including appellate courts?" Perell wrote late last month.
Shapiro is appealing that order, too.
