Setting aside all the complicated political and historical implications, it is interesting to look at the Supreme Court decision in JW v Canada.
Though there is no clear majority in this case on all the points mentioned below, the deliberations of the judges of the country’s highest court with respect to contractual adjudication are more than interesting. The question of importance here is to what extent there should be judicial intervention where the adjudicator’s powers are purely contractual in nature and the contract itself is elevated to the level of the Court order.
According to Judge Coté, judicial review cannot be sought and administrative law analysis is not applicable to the adjudicators’ decisions in such a case. Coté J. pointed out that the adjudicators exercise powers granted by contract and have no statutory authority. Therefore, the courts’ general supervisory jurisdiction allows them to ensure that the Agreement’s contractual commitment is fulfilled, but this does not mean that the adjudicators are state actors. Nor does this analysis, according to Coté J. change just because the state is one of the parties to the Agreement, because the availability of judicial review depends on the source of the decision maker’s authority, not the identity of the parties. In this case, writing the Judge Coté, the IAP adjudicators’ authority was conferred by the parties to the Agreement, not by an act of the legislature or the exercise of prerogative powers. And the fact that the contract was approved by Court order does not transform the operation of this private settlement into a public act.
Coté J. goes further, explaining that in entering into the Agreement, claimants relinquished their right to have their claims resolved by the Courts in favour of a process with various compensatory and non‑compensatory benefits.
Brown J. pointed out that the Agreement expressly precludes judicial intervention, even where the IAP has been incorrectly interpreted and applied. He sees the Agreement as a complete code that limits access to the courts, preserves the finality of the IAP and respects the expertise of IAP adjudicators. In the view of the judges, where the parties have failed in their contract to address a particular situation arising in the course of their relationship, a court may imply a contractual term. However, notes Brown J., this does not permit a court to imply a term which is contrary to the parties’ clearly expressed intentions. The Judge warns against straining to find a gap in the Agreement so as to open space for judicial recourse – all in the situation where the parties clearly intended to preclude it. According to Brown J., this would defeat the intention of the parties and undermine the integrity of the process that they settled upon. The Judge insisted: merely because the Agreement does not contain certain terms does not mean that there is a gap waiting to be filled by judges.
While Coté J. was in the majority and Brown J. was dissenting, it is important to note their views as they show the general trend in judicial approach towards contractual adjudicating systems.
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