Mandate

The mandate of the Indian Residential Schools Adjudication Secretariat is to implement and administer the IAP under the direction of the Chief Adjudicator in an independent, objective and impartial manner.

The IAP compensates for three categories of claims:

• First, sexual and physical assaults, as particularized in the IAP, which were committed by an adult employee of the residential school or another adult who was lawfully on the premises;
• Second, sexual or physical assaults, as particularized in the IAP, committed by one student against another at residential school, in which case staff knew or should have known about the abuse; or, in serious sexual abuse cases, where reasonable supervision standards were not in place;
• Third, any other wrongful act or acts committed by an adult employee or another adult lawfully on the premises where the abuse caused serious psychological consequences for the claimant, as particularized in the IAP.

These three types of claims constitute “continuing claims” in the IAP.

Features of the Adjudication Secretariat

Admissions

One primary function of the Secretariat’s mandate – to decide whether applications fall within the terms of the IAP – is carried out by the Admissions Unit. This group assesses whether or not claimants make allegations that, if proven, are eligible for compensation under the IAP.

To decide if a claimant is eligible for compensation, the Admissions Unit determines whether the allegations claimants make in their application are continuing claims. Continuing claims are those summarized above; they constitute claims that are in compliance with the standards of the IAP.

Many claimants will meet the standards of the IAP and be eligible for compensation, but some will not. If the Admissions Unit finds that a claimant has raised matters that do not qualify for resolution under the IAP, it will send a letter to the claimant to help him or her understand why the claim has not been accepted.

Claimants have an opportunity to contest this decision with an appeal to the Chief Adjudicator. The Chief’s decision on the matter is final.

Resolution Tracks

The Secretariat admits claims into one of two resolution tracks. These procedural tracks separate claims based on their complexity to allow most cases to proceed as quickly as possible.

The Standard track covers most claims. To be compensated in this track the Claimant must prove the abuse and the harms on the balance of probabilities, and then show that the proven harms were plausibly linked to the proven abuse.

The Complex track resolves claims of Actual Income Loss (AIL) and Other Wrongful Acts (OWA) (see “Difference from DR” section below for descriptions of these categories). The Complex track addresses claims in accordance with the same standards a court would apply in like matters, whereby claims of AIL or OWA must be proven to have been caused by one or more events of abuse for which the IAP compensates. Also, expert witnesses are involved in the Complex track, unless the parties consent to proceed without them.

Process

Another primary function of the Secretariat’s mandate – to support the Chief Adjudicator in reaching resolution of claims of residential school abuse – is carried out by the Case Management Unit.

The Case Management Unit ensures that claims are ready for a hearing. Case Management obtains a Claimant’s mandatory documents; provides the adjudicator with relevant documents and witness statements; and provides staff to assist the Chief Adjudicator.

In addition, a “crisis line” (1-866-925-4419) is maintained to support claimants as they advance through the process. Each of these functions assists the Chief Adjudicator towards reaching resolution on claims.

Independence

The IAP is independent from the Government of Canada and other parties to the Settlement Agreement. The role of the Secretariat staff in screening applications and the role of the Chief Adjudicator and Adjudicators are independent in assessing claims of former residential school students and rendering decisions. The parties to the Settlement Agreement need to be satisfied that the IAP will be managed and operated free from interference by the government.

Period of operation

The Settlement Agreement places strict obligations on the Secretariat. The IAP will accept claims for five years.

Differences between ADR and IAP

While DR and the IAP share the intention of resolving allegations from victims of Indian Residential School abuse, the two processes have many differences. The IAP introduces several new important features.

Regarding compensation awards, the maximum compensation for claimants in the IAP is higher than in DR. There is a single national compensation scale in the IAP, as opposed to the DR regional scale. Also, whereas, under DR, Canada would pay 70% of a claimant’s award and the church groups were responsible for the remaining amount, in the IAP the amounts Adjudicators award to a claimant are paid in full.

The IAP reflects a broader compensation range than the DR, and includes new categories such as Actual Income Loss (AIL) and Other Wrongful Acts (OWA). Claimants may be compensated for AIL if they prove they did not acquire income that they would have attained if their residential school abuse did not occur. Also, claimants may be compensated for OWA if they prove they incurred serious psychological harms as a result of wrongful acts that cannot be compensated in the sexual or physical assault categories. Both AIL and OWA are resolved in the Complex track.

The IAP also allows for increased awards for former DR claimants who have one or both of two types of claims. Claimants who were awarded compensation in DR and signed a release after May 30, 2005 may be eligible for increased awards in one or both of two IAP categories. Claimants who experienced loss of opportunity at the highest level in DR are eligible for increased compensation in the IAP. As well, claimants who were sexually abused by other students (at one or both of the highest two compensation levels in DR) are eligible for increased compensation in the IAP. Where this abuse would be the most serious proven abuse in the claim but could not be compensated in DR (because of the liability standards for student on student abuse that differ from the IAP) a claimant may have their file re-opened to consider increased compensation.

Certain categories have also been expanded in the IAP to compensate for more types of abuse. The sexual assaults category is broadened; the student on student abuse category is enlarged; the harms category is expanded; and the aggravating factors category is extended.

The parties to the Settlement Agreement created the IAP to resolve serious forms of physical abuse, among other things. It was understood by the parties that lower level physical abuse claims are subsumed, among other wrongs, within the Common Experience Payment.

Any DR application which included an allegation of sexual abuse was transferred to the IAP unless the claimant, within 60 days of receiving notice of the proposed transfer, elected in writing to remain in DR. Any DR application which alleged only physical abuse was to be processed in DR unless the claimant elected to transfer to the IAP. DR claims that were not eligible for transfer to the IAP remained in DR and will be resolved under the DR model. The bulk of the final work of DR will be resolving claims of low-level physical abuse, which are not eligible for transfer to the IAP.

The IAP is the new framework for claim resolution. Claimants that have not made or settled a claim may apply to the IAP for resolution of their claims of residential school abuse. DR is no longer accepting applications.

Support

The IAP ensures support is available to Claimants as they proceed through the resolution process. Claimants who wish to bring along support persons to hearings will receive payment for reasonable travel costs. Hearings can happen at the location of the Claimant’s preference, subject to hearings being scheduled to promote economy. Also, counselors, or at least ready access to counseling services, will be available for the hearing process.

At the request of the Claimant, cultural ceremonies such as an opening prayer or smudge can be incorporated into hearings.

Where compensation is awarded to a Claimant who has been represented by counsel, a further 15% of the award will be added as a contribution towards legal fees. Reasonable and necessary disbursements will also be paid.

Finally, as part of the Settlement Agreement’s ultimate goal to support reconciliation and healing, the IAP provides for up to $10,000 for future care, like medical treatment or counseling; an additional $5000 is available if psychiatric treatment is required.