The Independent Assessment Process

The Settlement Agreement sets out the details of the Independent Assessment Process in schedule D.

There are three main functions of Schedule D, the IAP Process document.

First, the IAP process document explains the types of claims that can be compensated. The IAP outlines the liability standards of a continuing claim – an abuse event which is eligible for compensation in the IAP. The IAP lists the different forms of sexual assaults, serious physical abuses, or serious psychological harms resulting from abuse that may be compensated. As well, the IAP delineates which effects of an abuse event may receive compensation once the continuing claim is considered a proven act by an Adjudicator. Additional compensation is available for claims of aggravating factors that made the abuse worse; harms that resulted from abuse; loss of opportunity or actual income loss (but not both); and future care needs.

Second, the IAP process document determines the scale used to supply compensation for abuse. Awards are based on a compensation framework that ensures claimants receive compensation for abuse suffered at IRS and the resulting effects. The IAP allows for Claimants who prove a continuing claim of residential school abuse to get between $5,000 and $275,000 each – or more money if they can also show an actual loss of income. Altogether, the maximum IAP award possible for a claimant is $430,000. The IAP also allows for an additional provision of 15% of the amount paid to a represented claimant as a contribution towards legal fees.

If any party does not agree with the amount granted, there is a review process allowed for by the IAP, in which case a party may ask the Chief Adjudicator or designate to determine whether an Adjudicator’s, or reviewing Adjudicator’s, decision properly applied the IAP to the facts. The Chief or designate is asked to correct improper decisions.

Third, the IAP process document dictates the procedures to be followed in resolving claims of IRS abuse in the IAP. Among other things, it outlines the resolution process; describes the burden of proof and evidentiary standards; explains the procedures for expert evidence, involvement of alleged perpetrators, settings, and decisions; summarizes the mandate of the IAP Oversight Committee, the Chief Adjudicator, and the Adjudication Secretariat; and sets forth the instructions for Adjudicators, outlining how they are to perform their duties.

IAP Application

The IAP asks claimants to provide in their application to the IAP an account of the abuse they endured in narrative form. The IAP requests that claimants indicate by reference to the standards of the IAP each alleged wrong with necessary details. Plus, the IAP requests claimants to specify by reference to the Compensation Rules established in the IAP the categories under which compensation will be sought.

IAP applications will be accepted until September 19, 2012.

While claimants may proceed through the IAP without legal representation, claimants are urged to obtain legal counsel for the process.

Court Access

After being admitted to the IAP, claimants are permitted to apply to the Chief Adjudicator for access to the courts. Claimants may be eligible for court-access in three circumstances.

First, claimants may access the courts if there is sufficient evidence that the actual income loss or loss of opportunity may exceed the maximum permitted by the IAP.

Second, claimants may access the courts if there is sufficient evidence that the claimant suffered catastrophic physical harms such that compensation available through the courts may exceed the maximum permitted by the IAP.

Third, claimants may access the courts in a claim of other wrongful acts if the evidence is so complex and extensive that recourse to the courts is the most appropriate procedural approach.

The courts will utilize their own standards, rules, and processes to address matters when the Chief Adjudicator grants access to the courts.

For more information: www.iap-pei.ca