Statement by Chief Adjudicator Dan Shapiro on Canadaâ€™s decision on Student on Student (SOS) claims
March 16, 2018
The seriousness of the issues surrounding claims involving student-on-student (SOS) abuse has been recognized by Independent Assessment Process (IAP) adjudicators since the earliest days of the IAP. Our adjudicators have made thousands of compensation awards to IAP claimants for SOS abuse within the IAP. In a large number of these SOS claims, claimants were not required to establish staff knowledge that such abuse was occurring at the time, or that staff failed to take reasonable steps to prevent the abuse.
However, for certain types of abuses, claimants are required to prove staff knowledge / failure to take reasonable steps to prevent abuse in order to receive compensation. Understandably, this can be a difficult burden to meet for former students who were often young children at the time of the abuse, which in some cases may have occurred as long as 50 or 60 years ago.
Under the terms of the Settlement Agreement, Canada is required to develop admissions of staff knowledge / failure to take reasonable steps to prevent abuse, based on adjudicatorsâ€™ decisions. In 2013, my predecessor advised adjudicators to postpone decisions on cases that would fail due to lack of proof of staff knowledge. He advised them to await potential future admissions by Canada that might assist these claims. There were concerns that claims that would otherwise be valid would fail simply because of when they proceeded to a hearing. In fact, new admissions have assisted many IAP claimants in proving their claims in hearings that followed.
As of March 2018, there are over 2,000 adjudicator decisions that resulted in more than 4,600 admissions. Despite efforts to correct the unfairness that resulted from the timing of hearings for certain claims involving student-on-student abuse, claimants whose hearings occur near the end of the process have had the benefit of thousands of admissions, whereas those whose hearings took place early on in the IAP did not. Recently, Canada obtained a decision from the supervising courts preventing adjudicators from considering admissions made by Canada after a claim was dismissed. A number of appeals of this court decision have been filed. The appeals have not been heard. However, on March 13, 2018, Minister Bennett issued a statement to the effect that Canada is now willing to resolve such claims. She estimates that as many as 240 claims may have been dismissed due to the lack of admissions in place at the time of the decision in their case.
The Ministerâ€™s announcement may have inadvertently left the mistaken impression that:
- until March 13, 2018, student on student claims had not been allowed in the IAP;
- there were only 240 claims for student on student abuse in the IAP; and,
- Canada has always supported a compensation policy for SOS cases that does not depend on when the hearing occurred.
It is important to clarify the record in these respects.
I welcome Canadaâ€™s recent decision to pursue settlements with former students of Indian Residential Schools who suffered student-on-student abuse. This decision is consistent with the claimant-centered approach of the Independent Assessment Process. Since the beginning of this process, my predecessor and I have worked with other partners to ensure that all claims in the IAP are adjudicated and compensated fairly and that the outcome of a claim does not depend on the timing of an IAP hearing.
I am pleased that Canada has now expressed its willingness to settle claims in order to ensure fair resolution of all SOS claims regardless of their timing. This approach recognizes the importance of ensuring that the treatment of all claimants is consistent with the Settlement Agreementâ€™s goal of achieving a "fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools."
Claimants who believe they may be eligible to pursue a negotiated settlement related to student-on-student abuse in the category of claims discussed above should contact their lawyer or Deanna Sitter (firstname.lastname@example.org), who has been designated by Canada to deal with these claims.
Independent Assessment Process