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The Indian Residential Schools Adjudication Secretariat (the Secretariat) is an independent, quasi-judicial tribunal providing impartial application processing and decision-making for claims of abuse at federally-administered Indian Residential Schools.
The Secretariat manages the Independent Assessment Process (IAP), a non-adversarial, out of court process for claims of sexual abuse, serious physical abuse, and other wrongful acts causing serious psychological injury to the claimant. As one of the compensation programs established under the Indian Residential Schools Settlement Agreement (IRSSA), the IAP is the only option for former residential school students to resolve these claims1 , unless they opted out of the Settlement Agreement. The deadline to submit an application under the IAP was September 19, 2012. The IAP aims to bring a fair and lasting resolution to harms caused by residential schools through a claimant-centred and neutral process.
The Secretariat is one of Canada’s largest quasi-judicial tribunals. It reports to Chief Adjudicator Daniel Shapiro, Q.C., who was appointed by the IAP Oversight Committee and confirmed by the Courts.
I am pleased to release my Annual Report for 2015, which sets out the activities undertaken by myself and by the Indian Residential Schools Adjudication Secretariat (the Secretariat) in fulfilling our mandate to deliver the Independent Assessment Process (IAP). The Secretariat continues to provide high quality claimant-centred services while resolving claims in a fair and consistent manner. I, the Secretariat staff, and adjudicators have worked diligently over the past year to ensure that we are on track to complete the vast majority of claimant first hearings in the IAP by the spring of 2016. As the Chief Adjudicator, I am very pleased by the results that we have achieved this year.
In 2015, the Secretariat resolved 3,537 claims. This includes 2,666 IAP decisions, 530 claims resolved through the Negotiated Settlement Process (NSP), 250 withdrawn claims, and 91 claims that were found ineligible for admission, withdrawn before admission or not accepted. Since implementation of the IAP to December 31, 2015, of the 37,998 IAP applications received, 33,910 (89%) have been resolved. Including negotiated settlements, awards, legal fees and disbursements, $2.95B has been paid.
As of December 31, 2015, 4,088 claims remained in progress. Forty-five percent of these (1,855) were in the post-hearing stage and the remaining 2,233 had not yet had a hearing. Importantly, it is estimated that over one-half of the unheard claims may resolve without a hearing, meaning that there are fewer than 1,000 claims left to have a hearing. One-quarter of the remaining claims involve self-represented claimants, well above historic norms.
With last first claimant hearings within sight and the workload diminishing, adjudicators and Deputy Chief Adjudicator (DCAs) are beginning to transition to other work opportunities or pursue personal interests.
In June 2015, DCA Kaye Dunlop of Winnipeg, was appointed to the Manitoba Court of Queen’s Bench, in the Family Law Division. Justice Dunlop was called to the Manitoba Bar in 1984 and appointed as Queen’s Counsel in 1994. She practiced extensively in the areas of Aboriginal Law and Child Welfare law. She joined the first group of Senior Adjudicators under the Alternative Dispute Resolution (ADR) Process in 2003. She served as a DCA from the outset of the IAP in 2007, and chaired the Technical Sub-Committee of the Oversight Committee since August 2013. In that role, she took the lead on the implementation of the IFR process and other initiatives critical to the successful conclusion of the IAP, including the “Student on Student Admissions” and “Claimants Who Struggle to Self-Represent” projects.
Deputy Chief Adjudicator Rodger Linka of Regina, who also joined the ADR in 2003, was appointed to succeed Justice Dunlop as Chair of the Technical Sub-committee of the Oversight Committee.
DCA Catherine Knox is in the process of gradually winding down her IAP work. She had hoped to do this earlier in 2015 but kindly agreed to stay on longer to assist in the transition of DCA Dunlop's files following the appointment of DCA Dunlop to the Manitoba Court of Queen’s Bench. We have been very fortunate to have had DCA Knox as a highly valued member of our team, serving as a DR adjudicator starting in 2006, an IAP adjudicator from its outset in 2007 and Deputy Chief Adjudicator since December 2012. In addition to supervising and mentoring adjudicators, DCA Knox has always played a key role in continuing education for adjudicators and was deeply involved in IAP integrity issues from March 2012 to November 2014. As of November 4, 2015, DCA Knox no longer has responsibilities for supervising adjudicators.
I wish to congratulate Justice Dunlop on her well-deserved appointment and acknowledge her many contributions to our process. I am equally very grateful for Catherine Knox’s many contributions to the IAP and for her willingness to continue with her IAP work until her docket is wound down. Deputy Chief Adjudicators (DCAs) play an important role in the delivery of the IAP and we are fortunate to continue to enjoy the active work of DCAs Michel Landry, Delia Opekokew (DCA Emeritus), Lisa Weber, Wes Marsden, Rodger Linka and Susan Ross.
A number of adjudicators have also gone on to work with other tribunals or transitioned to retirement. Departing adjudicators continue to use their best efforts to complete their remaining IAP work and many have asked not to take on new hearing assignments in order to accomplish this. When an adjudicator advises of their intention to leave the process, DCAs continue to monitor adjudicators’ workloads to provide support where possible and arrange reassignments where such steps are necessary.
On June 8, 9 and 10, 2015, the first national meeting of adjudicators took place in Winnipeg. In addition to covering substantive areas such as decision-writing, review writing, and completion processes, there was a significant cultural component to the meetings. Adjudicators were able to benefit greatly from the presence of Elders throughout the meeting. The Elders participated in panels and presided over ceremonies. In that past we have had psychologists speak to our adjudicators regarding vicarious trauma issues, which are a foreseeable risk of the work our adjudicators are engaged in. However, for the first time, Elders offered an “Elder’s Lodge” to assist adjudicators, Indigenous and non-Indigenous alike, with such issues. The important agenda items, the opportunity to meet and engage with all of their colleagues for the first time, together with key-note speeches by Phil Fontaine, former National Chief of the Assembly of First Nations, and Ted Hughes, ADR Chief Adjudicator, served to inspire and motivate adjudicators to conclude the work necessary to successfully wind up the IAP, with a high degree of commitment and enthusiasm.
At its May 2015 meeting, the IAP Oversight Committee accepted the recommendation that all remaining claims be set down for hearing. Since the decision, the vast majority of first claimant hearings were held by end of 2015, with most of the remaining claims scheduled for hearing by the end of spring 2016. The setting down all remaining first claimant hearings has been a significant and necessary step towards concluding the IAP. Other than new cases which become ready for hearing and cases that cannot yet go to hearing (e.g., lost claimants and certain complex track claims), schedulers are now working to schedule the complete caseload of remaining hearings. Witness hearings, alleged perpetrator hearings and re-hearings (where ordered on review) will take place afterwards, along with post-hearing work such as medical and expert assessments, legal fee reviews, appeals and reviews.
Following Justice Perell’s approval of the IAP Completion Strategy on June 19, 2014, the Secretariat implemented the Incomplete File Resolution (IFR) Procedure and the Lost Claimants Protocol, which form the foundation of our efforts to resolve the remaining caseload in a claimant-centered and timely fashion. The IFR Procedure and Lost Claimants Protocol provide extraordinary safeguards to claimants and provides every reasonable opportunity to allow the claim to proceed to hearing. Under paragraph 25 of the IFR Procedure, approved by the IAP Oversight Committee, the National Administration Committee and Justice Perell, claimants whose applications are dismissed without a hearing pursuant to Step 2 of the IFR may apply to the Chief Adjudicator for leave to allow his/her claim to be reconsidered. In December 2015, the Oversight Committee decided that the reconsideration deadline would be August 1, 2017, which means the last practical date to hold a first claimant hearing is February 1, 2018. This date has significant implications not only for the claimants and stakeholders but for the Secretariat in order to ensure sufficient capacity, both within the Secretariat and adjudicative, to conclude the remaining cases.
Hearing postponements and cancellations remained high in 2015, approximately 26% throughout the year, and continue to pose a significant risk to the ability to conclude hearings and the wind down of the IAP. In order to address this risk, a suite of new policies were implemented, including:
It is expected that this suite of measures will deter failures to attend hearings, assessments and teleconferences, by providing adjudicators with the authority and tools necessary to achieve needed improvements in each of these areas. Adjudicators are now required to take a more proactive approach, gather testimony even if mandatory document production is not complete, and consult with their DCA before granting a hearing postponement. With these new measures now in place, it is hoped we will see considerable reduction in the rate of postponement of hearings. We will continue to monitor the impact of postponements closely and will consider other measures if it becomes clear that the above measures do not achieve the desired effect.
The Student on Student Admissions Project was designed to identify those claims in which the application alleged staff knowledge of student on student abuse. Those claims were identified as priority claims given that they held the greatest promise of potentially yielding admissions of staff knowledge by Canada. Such admissions may assist claimants who have been postponing their hearing or submissions on their claims, pending possible admissions by Canada, allowing many of these to move forward to conclusion. It is anticipated that this project will be concluded by June 2016, by which time all remaining claims will be expected to move forward.
The St. Anne’s Self-Represented Claimants project has involved appointing a small group of adjudicators who developed special expertise in the significant volume of new documents produced by Canada as a consequence of the Direction of Justice Perell in June 2015. This project is drawing to a close, as all of the self-represented claimants with claims involving St. Anne’s are close to concluding their claims or have retained counsel.
The Claimants Who Struggle to Self-Represent project helped to identify barriers and move claims forward where claimants have either capacity or mental health issues. Adjudicator intervention has resulted in providing these claimants and their families with the information and support necessary to allow many of these cases to successfully go to hearing. Two adjudicators, one a former Ontario Mental Health Review Board Chair and the second a long-time Public Trustee for Manitoba, have prepared a paper on capacity issues to assist adjudicators and counsel in dealing with such claims.
Targeted efforts involving specialized adjudicators and increased DCA involvement have also been introduced to support self-represented claimants. These initiatives reach out to self-represented claimants who are reluctant to engage in the process, to encourage re-engagement with their claims, to address concerns, and to communicate the potential consequences of continued non-participation. As well, an initiative has been introduced to allow specially trained adjudicators to participate in hearings and pre-hearing teleconferences to help claimants who have are unable to obtain legal counsel in moving forward with their claims.
In June 2012, Justice Brown issued her Direction on the 284 IAP claims in which Blott & Co. had initiated steps on behalf of claimants whose applications had not been submitted to the Secretariat. These files were deemed to have been submitted prior to the deadline, but not deemed to have been admitted to the IAP. The “deemed submitted but not admitted” files were assigned by the Transition Coordinator to successor counsel for follow-up. Of the original 284 claims, 126 claims remained unresolved. In September 2015, three years after the September 19, 2012 deadline, the Transition Coordinator advised of a plan to apply to the Courts to fix a date beyond which no claimant in the “deemed submitted but not admitted” group may file a claim and suggested a cut-off date of November 30, 2015. The Transition Coordinator and Crawford Class Action Services would take any steps the Court considered appropriate to publicize the cut-off date.
Ultimately, with the support of the Transition Coordinator, a process was arrived at whereby these files would be considered lost claimant files and transferred to the Secretariat to permit follow-up under that protocol. Crawford requested copies from successor counsel of applications which had not already been returned and forwarded these to the Secretariat to begin the search. We are working to develop a plan with the Transition Coordinator in connection with the other unresolved files.
In the end, while it is not anticipated that there will be a large number of such Blott and Co. claims that will end up being brought into the IAP for hearings, it is reasonable to anticipate that some of these will.
The IAP may yet receive additional claims as a result of several ongoing Article 12 applications and appeals, as four institutions could potentially be added to the list of schools covered by the Settlement Agreement.
In my discussions with Court Counsel regarding the scope of new class members that could potentially come into the Settlement Agreement as a result of these Article 12 applications and appeals, based on information supplied by Canada they combine for approximately 2,300 potential eligible class members. While these numbers include class members that would be eligible for the Common Experience Payments, not all would be expected to file IAP claims.
There are presently three RFDs that have considerable operational implications for the Secretariat that I will briefly report on.
Applications filed after September 19, 2012 deadline: In Myers v. Canada (Attorney General), 2015 BCCA 95, the British Columbia Court of Appeal dismissed an appeal by four IAP applicants against a decision of BC Supreme Court Justice Brenda Brown, who refused to extend the IAP Application Deadline on account of their former lawyers' failure to file their IAP applications on time. The Court of Appeal held that while all sympathies favour the appellants, the Settlement Agreement is clear that the deadline was intended to be absolute, and the Court does not have jurisdiction to vary or extend that deadline. This decision is available online at http://canlii.ca/t/ggkm0
Years of Operation / Administrative Split cases: Numerous reviews and re-reviews were put on hold pending Direction from the Supervising Courts in response to a claimant challenge to a Chief Adjudicator decision rendered in August 2012. The case was heard before Justice Nation in February 2015. Justice Nation concluded that:
While issues of years of operation / administrative splits with respect to the other schools vary factually and perhaps legally, in light of the decision of the Supervising Court, given that the general principle regarding the authority of adjudicators regarding such matters has now been judicially determined, steps were taken to render many of the re-review decisions in the cases that had been put on hold pending the court’s decision2. The decision can be viewed in Fontaine v. Canada (Attorney General), 2015 ABQB 225; http://www.canlii.org/en/ab/abqb/doc/2015/2015abqb225/2015abqb225.html
Disposition of Records: The Ontario Court of Appeal issued a stay with respect to much of the Order flowing from the Direction of Justice Perell in the disposition of records RFD, but preserving the enforceability of the confidentiality provisions in the Order pending appeal. The hearing for the substantive appeals was heard on October 27 and 28, 2015. At the time of writing this report, I am still awaiting a decision from the Ontario Court of Appeal on the disposition of IAP records; however a decision is likely imminent3.
The challenge for the Secretariat is how to plan for the completion of the IAP while ensuring adequate capacity not only to conclude the remaining cases, but also should any cases be remitted for a new hearing under our review processes, any of the “deemed submitted but not admitted” Blott & Co. files come to hearing, cases dismissed under Step 2 of the IFR Procedure coming to the Chief Adjudictor for reconsideration, or files referred to the Secretariat by the courts, either as a result of pending Article 12 applications, or applications to the Supervising Courts to re-open or seek review of final decisions rendered within the IAP. It is hoped that some clarity will be provided by the courts as to the time-frame within which applications to challenge final decisions within the IAP may be brought and the parameters for such applications.
As the pace of hearings declines significantly in the spring of 2016, the Secretariat will soon be required to reduce the size and cost of operations, including reduction of the workforce. Historically, staff processes have provided a significant challenge to the Secretariat’s efforts to achieve its staffing targets. Ramping up to any significant degree once wind-down has commenced will pose even greater challenges to ensure sufficient resources (e.g., staff, adjudicators, experts, etc.) are in place to meet any additional and unforeseen claims to the IAP. Likewise, it will be challenging to plan for adjudicative capacity. Nonetheless, I do not want to discourage adjudicators from looking for other work, when it is conceivable that ultimately, none of these schools may be added and that no or little additional work will be forthcoming.
Additionally, to improve the timeliness of decision writing and minimize post-hearing delays as much as possible,I have instructed adjudicators to book all pending final submissions calls, write all overdue decisions, and be ready to advance claims with outstanding document collection by specified deadlines. As a result of this direction, there was significant file movement in outstanding decisions late in the year
In closing, I would like to thank all Deputy Chief Adjudicators, adjudicators, Shelley Trevethan, Executive Director of the Secretariat, her staff, and all Secretariat staff, for their passion, creativity and commitment to the delivery of the IAP. These are challenging times for the Secretariat and I remain optimistic about what we can accomplish over the next few years.
Retirement of Justice Schulman in December 2015. I would like to acknowledge Justice Schulman’s many contributions to the Indian Residential Schools Settlement Agreement, and to extend my very best wishes to him for his retirement.
All of which is respectfully submitted,
Daniel Shapiro, Q.C. Chief Adjudicator
Since implementation of the IAP to December 31, 2015, 37,998 applications had been received by the Secretariat, 33,723 of which were admitted. There were 46 active claims awaiting a decision on admission/non-admission (almost all had been reactivated following a previous non-admit and/or returned to active status following loss of contact). Additionally, there were approximately 230 deceased or lost claimant files without an admissions disposition.
A total of 2,712 IAP claims were processed4 in 2015 (see Figure 1), for a total of 30,158 since the beginning of the process. Though this figure is significantly lower than past years, this reflects the complex nature of the remaining caseload - the majority of claims have now been processed, leaving only those with specific complexities or barriers remaining. Under the Accelerated Hearings Process (AHP) and Mandatory Setting Down of Hearings projects (described below), all claims which can be scheduled in 2015 receive a hearing date.
Figure 1 : Files Processed per Calendar Year
As illustrated in Table 1, 3,537 applications were resolved in 2015, through an adjudicator’s decision, negotiated settlement or due to withdrawal or ineligibility. In total, 33,910 claims had been resolved by December 31, 2015, approximately 89% of all applications received. For the first time since the initial ramp-up period (when the majority of decisions were former ADR claims already in process), the number of adjudicator decisions has outpaced the number of hearings held (Figure 2).
Applications Received and Resolved by Calendar Year
|Adjudicator Jurisdictional decisions||0||0||0||1||11||21||53||76||54||216|
Figure 2 : Hearings Held and Decisions Issued by Calendar Year
In the IAP, parties have the option to negotiate a settlement to a claim. In most cases that are accepted for negotiation, this avoids the need for an adjudicated hearing and decision.
The NSP is handled primarily by Canada5 rather than the Secretariat, and is an important path to file resolution. As seen in Table 1, claims resolving in the NSP declined in 2014; however, in 2015, although the actual numbers were not significantly greater, the relative proportion of NSPs among all resolved claims grew from 11% to 15%.
The majority of claims in the NSP resolve without the need for an adjudicated hearing. However, in some cases a claim may proceed to negotiation after a hearing has occurred. The proportion of post-hearing NSPs rose from 3% in 2014 to 6% in 2015, which may be attributable to the increase in claims heard prior to document completion under the AHP, or to targeted efforts to resolve priority student-on-student claims.
NSP is expected to play a reduced role in 2016, as the vast majority of claims suitable for negotiation have moved through the process. While Canada had initially committed to conduct 708 NSPs in each of the 2014-15 and 2015-16 fiscal years, representatives notified the Secretariat in January 2015 that the target would be lowered to 500 per fiscal year, and in September the 2015-16 target was reduced again to 450.
Figure 3 : Negotiated Settlements by Calendar Year6
An increasing proportion of the remaining caseload is made up of claims which have had a hearing but have not yet received a decision. This is to be expected due to the focus on completing hearings by the spring of 2016. However, it does present a challenge in balancing the needs of the pre- and post-hearing caseload to ensure that there is not an undue delay in claim resolution, release of decisions, and receipt of compensation.
Figure 4 : Pre- and Post-hearing Admitted Caseload, 2015
In addition, in past years, the majority of IAP claims have been represented, standard-track files which could be processed relatively straightforwardly, once mandatory documents were submitted. These claims are the most appropriate for negotiated settlements, the newly expanded AHP, and short form decisions (a decision reached at hearing, with the consent of the parties, resulting in a much faster closure to the process and compensation to the claimant).
Due in great part to the significant efforts made in the past two years by the Secretariat, the Oversight Committee, adjudicators and parties, the vast majority of these ‘straightforward’ claims have now been processed, and we are now seeing a significant shift in the makeup of the remaining pre-hearing files. As demonstrated in Figures 5 and 6, while standard and represented claims are still in the majority, self-represented claims, claims in the complex track, lost and deceased claimants, and claims with complicated individual issues are becoming a much more significant proportion of the remaining caseload (e.g., as of December, 40% self-represented, 30% complex track). Due to difficulties or barriers with these files, they are proceeding to hearing and/or resolution at a much slower rate.
Figure 5 : Represented vs Self-represented Proportion of Pre-Hearing Caseload, 20157
Figure 6 : Complex vs Standard in the Pre-hearing Caseload, 2015
Unfortunately, these more difficult and complex files don’t lend themselves to efficiency strategies such as short-form decisions and negotiated settlements (Figure 7), and require increased time and file management efforts by Secretariat staff, adjudicators, and parties to resolve. Complex track claims are also less likely to be heard immediately under the AHP model due to the necessity to hold one or more pre-hearing conference calls prior to a hearing.
Figure 7 : NSPs and Short Form Decisions, 2015
The Secretariat’s ability to hold hearings is heavily dependent on the capacity and participation of the Parties. While previously, the greatest barrier to hearing scheduling was the requirement for mandatory documents, this has now been largely overcome through the expansion of the Accelerated Hearing Process (AHP) and the mandatory setting down of hearings. However, hearing rates and efficient scheduling continue to be impacted by availability among parties to attend hearings and to participate in the process, particularly claimants and counsel.
Hearings are scheduled according to availability dates provided by claimants, and the policy governing postponements allows for necessary changes when requested promptly. However, the rate of postponements and hearing cancellations has grown, despite best efforts to address it. Postponements and cancellations first came to the fore as a significant problem in 2010 and 2011, and a Postponement Policy was introduced in 2011, requiring adjudicator permission to postpone a hearing within 10 weeks of the scheduled date, and empowering adjudicators to impose conditions and requirements on parties when granting a postponement. However, for a variety of reasons, hearing postponements and cancellations are again having a significant detrimental impact to efficiency and the ability of the Secretariat to hold hearings.
As seen in Figure 4, at the beginning of 2015, approximately 77% of claims were heard as originally scheduled and a further 8% were rescheduled within the timeframe identified in the policy. However, as the year progressed, the number of cancellations and postponements outside the policy rose significantly. By the end of the year, 29% of hearings were postponed outside of policy timeframe or cancelled. Understandably, postponements were slightly higher among AHP claims. Higher rates of postponements are also seen among self-represented vs represented claimants.
Figure 8 : Claims scheduled and the increasing incidence of postponements
It should be mentioned that cancellations are not always a negative occurrence – a cancellation sometimes signals that the claim has been or will be resolved through another method, such as Negotiated Settlement or withdrawal. However, they do impact the ability of the Secretariat to schedule hearings efficiently and make best use of resources. Canada’s representatives have advised that they are working to ensure more prompt notification to the Secretariat when a scheduled claim proceeds to NSP. Canada has advised that it does not expect to continue its Negotiated Settlement Process after the end of the 2015-2016 fiscal year.
Postponements, however, present a greater difficulty, particularly when requested close to the set date, when logistics arrangements are already in progress, or when they result from a failure to appear/no-show. Postponements of claimant hearings can also lead to interruption of other arrangements in progress for a claim, such as hearings for alleged perpetrators.
Many postponements are unavoidable or necessary, such as those due to claimant health or capacity, change in claimant life circumstances (e.g., family emergencies, moves, incarceration) or emotional readiness to proceed. Hearings may also be postponed due to travel issues (e.g., severe weather), or reasons when the claimant does not appear for reasons unknown - it should be noted that, in many of these cases, the reason for the no-show is simply not known or was not listed, and should not be given an unduly negative interpretation. Significant numbers of postponements also result from late-occurring changes to representation or developments in the technical requirements of the claim (e.g., change in track, introduction of new evidence). However, significant numbers of postponements are also a result of matters which could, in some cases, have been avoided, such as the late raising of jurisdictional questions or insufficient claim documentation, legal counsel unavailability (other than for medical or emergency reasons), errors, miscommunications, or late communication of necessary changes to logistical needs. As discussed below, an update to the Chief Adjudicator’s guidance paper on hearing postponements, and new guidance papers on postponements of teleconferences and expert assessments, were introduced in the summer and fall of 2015 to address this issue, and it is hoped that the impact of these changes will be seen in 2016.
The parties to the Settlement Agreement desired a lasting and final resolution to claims of abuse arising from the Residential Schools system. When first implemented, it was anticipated that all IAP claims would be “processed”8 by September 2013. However, by the application deadline, the number of applications received was triple the original estimate9, which necessitated an extended timeline for resolution of all claims. Other issues such as delays in claimants submitting mandatory document collection, lost claimants, capacity among legal counsel to maintain a sustained heavy pace of hearings, and complex legal questions have also impacted on the timeline for completion of the IAP.
In January 2014, the Chief Adjudicator submitted a Completion Strategy to the Courts describing the Secretariat’s plan to complete all first claimant hearings by the spring of 2016. This strategy, available in its entirety on the IAP website, was accompanied by the Lost Claimant Protocol and the Incomplete File Resolution (IFR) Procedure, which was designed to provide authorities to adjudicators to resolve issues not originally anticipated in the Settlement Agreement and, ultimately, to close claims without hearing when all other options have been exhausted.
The Secretariat is on track to complete almost all first claimant hearings by the spring of 2016 as anticipated in the Completion Strategy. However, there are some claims that will be resolved without a hearing and a small number of stuck claims which may be heard after spring 2016. These may include lost claimants who are located, claims with legal difficulties which get addressed, claims where an estate is identified and wants to proceed to a hearing, and others. Additionally, although the deadline for new applications has passed, it is still possible that further applications may be admitted, through the receipt of new information on previously non-admitted claims for lost claimants, from former Blott claimants, or in the event that additional schools or claims become eligible for the IAP through court actions such as Article 12 applications and appeals.
This section describes the various targeted initiatives and process improvements implemented this year to enable the timely completion of the IAP.
Historically, one of the most significant contributors to claims being delayed in reaching a hearing has been the collection of mandatory documents, which was a condition to scheduling a hearing. Despite significant efforts over several years by legal counsel and the Secretariat (on behalf of self-represented claimants) to obtain records in a timely manner, the sheer volume of records requested from the various institutions which hold them has led to unavoidable, often months-long delays. In the spring of 2013, the Secretariat conducted a survey of claimant counsel to identify the biggest issues they were experiencing with the collection of mandatory documents. Based on the results, the Secretariat then worked with document-providing organizations to identify mechanisms to address issues, including MOUs with some agencies to reduce backlogs.
The Intensive Case Management (ICM) process, intended to address longstanding claims which had not yet become hearing ready and had no movement for an extended period of time, aimed to open dialogue with counsel to identify the source of the problem and to address it, where possible. Each claim was reviewed in detail and followed-up with a letter and telephone calls (where needed) to counsel to obtain updates on the claim. This process also served as a pre-review leading to the referral of some claims into the IFR process.
The ICM process, as originally designed, is now complete. In total, 1,163 claims received targeted follow-up under this initiative since the project’s inception in April 2013. Over the course of the project, the ICM had an average response rate from counsel of 83%. Following the completion of the ICM process, approximately 59% of ICM claims remained in the regular Case Management stream, having received a satisfactory response with respect to the claim’s progress. Approximately 17% were referred to the IFR Procedure due to non-response or insufficient response; 11% were referred to the Lost Claimant protocol, and the remainder were divided amongst withdrawals, withdrawals of counsel, and deceased claimants.
The ICM process served an important function in preparing the remaining pre-hearing caseload for the implementation of the IFR process and the mandatory setting down of hearings, as described below.
In late 2014 and continuing into early 2015, the Executive Director conducted a series of in-person visits to 36 legal counsel offices across the country, focusing on firms representing the largest caseloads in the IAP, or firms appearing to be at risk of not completing hearings by spring 2016 based on past participation history and remaining caseloads. The goal of these visits was to strengthen working relationships, to share information, and to help move files to resolution.
These visits included discussion of the Completion Strategy, updates on initiatives undertaken by the Secretariat such as the Accelerated Hearing Process (AHP) and the IFR process, a review of the workload of each law firm and timelines for file completion, and a discussion of issues encountered by counsel in resolving their claims. During visits, the idea of mandatory setting down of hearings was introduced to the firms, and the positive acceptance of this approach by many firms may in part be credited to engaging them prior to its introduction.
In many cases, these visits appear to be have had a significant impact on firms’ engagement in initiatives such as the AHP (prior to mandatory hearings), and have helped to open new dialogues with counsel. In August 2014, these firms represented 3,205 pre-hearing claims (72% of represented pre-hearing claims). By the end of June 2015, only 420 still required scheduling, and an additional 476 had been identified as lost or deceased, or otherwise likely to require resolution through IFR and/or related specialized initiatives.
These visits, and related activities to reach out to counsel, have had a significant mitigating effect on the potential impact of legal counsel capacity on the ability to complete first claimant hearings in a timely manner.
The Accelerated Hearing Process (AHP) has become a key method of improving efficiency and reducing the impact of incomplete mandatory documents on hearings, by allowing claims which have not yet completed mandatory document production to proceed to a hearing to capture claimant testimony. The remaining document collection is then conducted post-hearing.
Beginning in late 2014, the Secretariat began to pro-actively engage with legal counsel to gauge interest in the option of ‘setting down’ hearing dates for their remaining inventory, using existing AHP mechanisms to move files that were not yet hearing-ready; this began with an initial group of twelve firms with large caseloads. Introduced in concert with a series of in-person visits to legal counsel offices, this effort was a significant success in clearing the path to hearing for hundreds of claims which had been waiting. The AHP was also expanded to include self-represented claimants.
With the target of completion of first claimant hearings one year away, in May 2015 the Secretariat (with the approval of the Oversight Committee) implemented the mandatory setting down of all hearings, using the AHP model where needed to bring all possible remaining claims to their first-claimant hearings.
Through this process, dates for pre-hearing teleconferences (where applicable) and hearings were set down for all remaining pre-hearing files. Counsel have been asked to work with Case Management and Scheduling Officers to prioritize dates for their files and to update the status of files with the Secretariat. Mandatory Setting Down has also helped to identify files requiring targeted approaches such as withdrawal, withdrawal of claimant counsel, the Lost Claimant Protocol, the Estates protocol, and IFR process.
By the end of the year, the Mandatory Setting Down of Hearings process had made a substantial impact, both in ensuring that all possible claims received their first hearings as quickly as possible, and in helping to identify claims which were encountering previously unidentified barriers and required a targeted approach or other intervention in order to proceed.
The only pre-hearing files that had yet to be set down for a hearing or transferred to another targeted approach at the end of the year included self-represented claimants attempting to hire a lawyer, files with other representation issues, non-participating and no-contact information claimants undergoing verification, potential withdrawals undergoing verification, estate claims, and a small number of Complex Track claims currently in the conference-call stage.
Claims for deceased claimants present a unique challenge, particularly when claimants have passed without an opportunity to give sufficient testimony. A longstanding freeze on the movement of these files was lifted in January 2015, when three key review and re-review decisions established that claims put forward on the basis of hearsay testimony would not succeed; however, cases put forward without testimony of the claimant but where there is eye-witness testimony or transcripts of claimant testimony under oath in circumstances where Canada had an opportunity to participate in the questioning, might succeed to the extent of compensation for acts proven where necessary criteria are met.
Since the hold was lifted in January, the Secretariat received 78 requests for pre-hearing teleconferences. Of these, 36 claims have since withdrawn or been dismissed, and 43 are still active. There have been seven estate hearings to date.
There are approximately 700 deceased claimant files for which an estate has not come forward to continue the claim. INAC Estates has provided the Secretariat with results of their search for deceased claimant Administrators, but success in engaging these estates has been limited. These will most likely be resolved via the IFR should continuing efforts to contact estates be unsuccessful.
As discussed earlier, postponements and cancellations of hearings are having a significant impact on the ability of the Secretariat to schedule and hold hearings effectively and to meet established targets. Similar difficulties are arising with postponements and no-shows of case conference calls and no-shows at expert assessment appointments. The latter in particular is concerning, as the number of available expert assessors is limited, and missed or rescheduled appointments are costly, create delays to the file’s progress, take up time slots while others are waiting, and can damage the relationship of the Secretariat with assessors.
The Chief Adjudicator has requested that adjudicators, who are responsible to allow or deny requests for postponements outside of the given policy’s ‘rescheduling window’, take a firmer stance with parties requesting postponements, and grant these requests only when sufficient cause is given. As well, following extensive work with the Secretariat, Deputy Chief Adjudicators and the Oversight Committee, in the late summer and autumn of 2015, the Chief Adjudicator introduced a number of modifications to the existing hearing postponement policy (Guidance Paper 7r1) and also new guidance papers to address postponements and no-shows at conference calls (Guidance paper 9) and assessments (Guidance paper 10). All three guidance papers have been posted on the IAP website at http://www.iap-pei.ca/legal/directives-eng.php.
The guidance papers outline a similar process for each situation (hearings, conference calls, and assessments) whereby adjudicators are provided guidelines on when to grant or impose conditions on requests for postponements; timelines which must be followed for individuals wishing to request a postponement; the situations in which it may be appropriate to require a conference call to go ahead in the absence of an expected participant, to impose a financial penalty to counsel, or take unnecessary postponements into account when assessing legal fees; and when a claim may have to move forward or be dismissed without further rescheduling.
Due to the timing of their introduction, it is difficult to see the impact of these policy changes in statistics available to the end of December 2015, but it is hoped that they will send a clear signal to parties that postponements and cancellations are to be considered an exceptional circumstance, to be invoked only when truly required.
The IFR Procedure, submitted to the courts in January 2014 with the Completion Strategy and Lost Claimant Protocol, is a two-step process designed to enable the resolution of claims facing barriers which have prevented them from reaching a hearing or being resolved under the normal process through the IAP. The IFR was approved by Justice Perell of the Ontario Superior Court of Justice in July 2014. The implementation of Step 2 of the IFR required approval of the Oversight Committee, which occurred on January 20, 2015
Step One of the IFR process involves the Secretariat and/or a File Management Adjudicator working with the parties to resolve any issues relating to moving a claim forward, and to return the claim to the hearing process wherever possible. Step Two provides a Special Resolution Adjudicator new authority, such as ordering a hearing, setting conditions on a hearing, or dismissing a claim without a hearing where all efforts to resolve it through the normal process have failed. There are four major categories of files identified for IFR to date: non-participating claimants; deceased claims without an estate representative; deceased claims where estates are not participating; and lost claimants with whom the Lost Claimant Protocol cannot re-establish contact. Specialized adjudicators received training for the IFR in the spring and fall of 2015, and implementation began during the fall.
Under the IFR Procedure, claimants whose applications are dismissed without a hearing pursuant to Step Two of the IFR may apply to the Chief Adjudicator for leave to allow their claims to be reconsidered. At its December 2015 meeting, the Oversight Committee approved a “reconsideration deadline” of August 1, 2017 and the last practical date to hold a hearing of February 1, 2018.
As the Secretariat looks ahead to the completion of the IAP, its focus is expanding from the holding of hearings to the entire resolution of claims, and this includes seeking further efficiencies for the processing and resolution of claims which are in the post-hearing stage. Work conducted at this stage has grown significantly in complexity since the expansion of the Accelerated Hearing Process and as the remaining caseload grows proportionally more complex, leading to fewer short-form decisions and increased post-hearing activity. Several measures have been introduced this year to improve post-hearing efficiency and to address factors contributing to delays.
Activities influencing the time required in this stage include additional mandatory documents, expert assessments, witness or alleged abuser testimony, and final submissions conferences, among others. A complicating factor is the high incidence of no-shows at scheduled expert assessments. As noted above, Guidance Paper 10 was implemented in the fall of 2015 to address no-shows at expert assessments.
Cases requiring post-hearing document collection continue to make up the majority of the post-hearing caseload, and it is anticipated that this trend will continue with the increased number of hearings scheduled in advance of mandatory document completion.
Adjudicators have been taking a stronger stance with counsel representing cases which are not progressing at an acceptable rate, particularly with respect to outstanding post-hearing requirements such as mandatory documents. At the same time, the Secretariat has applied a renewed focus to addressing issues such as claims stalled in the Jurisdictional review process and post-hearing student-on-student claims. The Secretariat is working with adjudicators to find ways to further support their administrative needs and to promote the most efficient use of adjudicator time.
The framers of the Settlement Agreement created the IAP as a claimant-centred process, with multiple measures built into the model to ensure that the individual rights and needs of IAP claimants are respected throughout the process, while maintaining a fair and balanced adjudication process. This concept is integrated into the core values and the Strategic Objectives of the Secretariat. Below are some examples of how this value has been integrated into achievements in 2015.
A crucial component of the IAP is the support provided by Health Canada's Resolution Health Support Program. The Indian Residential Schools Resolution Health Support Program provides mental health and emotional support services to eligible former residential school students and their families throughout all phases of the Settlement Agreement, except in British Columbia, where the services are provided by the First Nations Health Authority. The support program is delivered through local Indigenous organizations.
Program components include: emotional support services provided by Resolution Health Support Workers for claimants as they discuss their experiences at residential schools at the hearing; cultural support services provided by Elders; professional counselling; assistance with the cost of transportation to access counselling; and Elder and/or Traditional Healer services.
Health Canada has been and continues to be an integral partner in providing emotional health and wellness support services at any point during the IAP for counselling and support, not just at the hearing. Over the years, the Secretariat and many RHSWs have formed very productive working partnerships. For instance, RHSWs have assisted with locating claimants where contact has been lost. This allows claimants to stay engaged with the IAP, receive support as requested, and advance their claims.
There exist a small, but important population of IAP claimants with whom contact has been lost, causing their claims to become ‘stalled’ in the process. Historically, privacy concerns have limited options available to the Secretariat to follow up on these claims effectively. In 2015, through public awareness activities, dedicated efforts to identify lost claimants and the implementation of the Lost Claimant Protocol, significant progress has been made in re-establishing lines of communication with these claimants.
The Lost Claimant Protocol (LCP), approved by Justice Perell of the Ontario Superior Court of Justice in July 2014, provides the Secretariat with guidance and authority to take a series of progressive steps to find and reconnect these individuals with their claims. The Protocol, which is available in full on the IAP Web site, is designed to protect claimants’ privacy at each step, while providing the Secretariat with access to additional information sources and respecting lawyers’ privileged communications.
Concentrated attempts to reach lost claimants began in 2014 with a public notice poster and Web site campaign in English, French, and Inuktitut, requesting that claimants contact the IAP Info line to re-establish contact about their claims. This was followed in early 2015 by expansion into social and traditional media: a video message from the Chief Adjudicator posted to the IRSAS YouTube accounts and IAP Web site, tweets on the Secretariat’s Twitter accounts, a press release, and radio PSAs in English, French, and two dialects of Cree. All materials can be viewed on the IAP website.
Before the Secretariat may commence any more potentially intrusive steps to locate a claimant, the claimant’s counsel, or Secretariat staff for self-represented claimants, must make best efforts to locate them through normal means. For the Secretariat, this involves a series of telephone attempts and registered letters to ascertain whether the claimant cannot be located. At the end of 2015, the Secretariat was in the process of following up with 121 ‘No Contact Information’ (NCI) claimants, and over the course of the year, self-represented claims which had been inactive due to loss of contact or non-participation were reconnecting and reactivating at a rate of approximately 171 per quarter.
Once a claimant is confirmed as ‘lost’, it is referred to the LCP. Three progressive steps are taken to re-establish communication with lost claimants: examining publicly-available information resources such as telephone directories and online search tools; accessing governmental and non-governmental databases; and utilizing outside resources at the community level to help locate claimants.
So far, the most effective method has been accessing external databases for contact information. Partnerships have been formed with INAC, Health Canada, Service Canada, Correctional Services of Canada, and the Motor Vehicle and Registry boards of most of the provinces and territories, among others.
As of December 31, 2015, 589 claims have been referred to the LCP, and 250 have since been located, their claims proceeding to next steps. The Lost Claimant Group is currently investigating 339 files. Of these, potential new contact information has been received for 119, which will be validated in the coming quarter. Efforts to engage community groups for implementation of the third step of the protocol (allowing for the Secretariat to contact community resources such as Resolution Health Support Workers, RCMP or First Nations Police) are underway.
There are a small number of claimants whose contact information appears to be valid, who do not respond to efforts to move their claims forward, are reluctant to participate, or directly refuse to participate in the necessary steps to proceed with their claim.
The Secretariat continues to reach out to non-participating claimants to determine the reasons for their choice not to participate, to address and allay concerns, to provide additional information and support, and to encourage a return to the process where appropriate.
In addition to one-on-one attempts to reach such claimants, a proposal was put forward in the spring of 2015 involving holding information sessions in accessible locations, in order to provide these claimants with face-to-face opportunities to learn about the process, to dispel misapprehensions and provide opportunities for claimants to provide mutual support, to discuss requirements for their individual claims, and, where possible, schedule hearings in-person. An adjudicator and health support personnel provided by Health Canada would be in attendance, and Canada also offered the assistance of an experienced representative. A session of this type was planned in Saskatchewan for the summer, but ultimately did not proceed. Of 14 identified potential participants, three had obtained counsel, and two elected to proceed directly to the Accelerated Hearing Process. The remainder had become lost contacts, refused to reply, or declined to participate. Although there remains the potential for another such session in another region should there be sufficient interest, the Secretariat has since focused primarily on individual communications.
Efforts are ongoing to identify more claimants who may benefit from personal outreach and to encourage as many self-represented claimants to attend a hearing as possible. Claims remaining non-participatory following multiple efforts are referred to the IFR Procedure for the intervention of an adjudicator.
As the remaining inventory of pre-hearing claims falls, the relative proportion of self-represented claimants is rising and becoming more significant. Although the Secretariat’s claimant support staff work directly with these claimants to provide information, reduce barriers and facilitate the administrative requirements for claims to proceed, they cannot take the place of qualified legal counsel, and many self-represented claimants continue to struggle.
Additionally, although every claimant has the right to choose to represent himself/ herself, there are increasing numbers of claimants becoming self-represented involuntarily when their lawyers choose to withdraw from their claims. These claims are unavoidably delayed by the need to establish contact, (re-)schedule hearings, initiate further document collection where required, and in many cases, support the search for new counsel. In December 2014, the Oversight Committee approved a list of lawyers10 accepting referrals of self-represented claimants, however, a significant proportion of involuntarily self-represented claimants have been rejected by two or more lawyers.
Significant work has been devoted in 2015 to self-represented claimants, both those who have chosen self-representation, those actively seeking counsel, and those whose attempts to obtain representation have not been fruitful. These efforts include targeted, claim-by-claim analysis to identify and address obstacles; individual outreach to encourage participation and to offer health and other supports; efforts to assist claimants in finding representation; claim referrals to specialized processes such as the Lost Claimant Protocol and the IFR; development of adjudicator specialization and best practices for supporting claimants who are struggling to represent themselves or who have mental illnesses or other special needs; and the development of procedures to allow the inclusion of self-represented claimants in targeted initiatives such as the Accelerated Hearing Process.
A new process for self-represented claimants desiring but unable to retain counsel was finalized at the close of the year and came into effect in January 2016, allowing these claims to move forward with the benefit of specially-trained adjudicators. As well, a proposal is in development for streamlining various types of pre-hearing conference calls for self-represented claims in the Complex track, to promote efficiency and to reduce stress for claimants.
In December 2013, the Oversight Committee approved a strategy to address claims involving allegations of student-on-student abuse on a priority basis. Because student-on-student claims may rely on admissions that staff at the schools were aware of those forms of abuse occurring in the school at the time, this process was introduced to allow claims which seemed likely to result in new knowledge admissions to be heard before other claims which might benefit from that evidence.
When this project was initially proposed, approximately 650 claims were identified as potential candidates; however, a large portion of the identified claims moved forward without specialized intervention to a hearing or negotiated settlement, or were determined to be ineligible due to withdrawal, lost contact, or jurisdictional or other issues. The number of identified claims remaining unheard has now dropped significantly.
By the beginning of summer 2015, all available eligible claims had advanced to scheduling. By autumn, approximately two-thirds of cases where claimants have alleged staff knowledge of abuse had progressed to hearing, and about one-half of these had received their decision.
In late 2015, an updated action plan was developed together with Canada’s representatives (who track and distribute the lists of relevant admissions) to better service student-on-student claims, including improved communications and frequency of updates on claim statuses, and updates to the format of Canada’s admissions updates to facilitate prompting of adjudicators when relevant new admissions are provided which could allow pending decisions to proceed. At the close of the year, 146 post-hearing claims were on hold pending student-on-student knowledge admissions. Approximately 199 Priority 1 and 211 claims were in progress, with potential to impact up to 1,046 other claims.
Sixteen schools have been identified as no longer likely to have any further admissions brought to light. Once confirmed that no further claims remain with adjudicators which could lead to further admissions for these schools, adjudicators will write pending decisions for claims from these schools, and to give these claims priority.
A key aspect of the Secretariat’s National Outreach Strategy is to engage stakeholders to help identify and address claimants’ needs and build awareness of claimants’ rights in the IAP. This involves partnering with Indigenous and non-Indigenous organizations to deliver services and products to distribute IAP information materials that meet the broad range of needs of former students, their families, communities, stakeholders and partners.
This year has seen a great deal accomplished in the engagement of stakeholders to promote awareness of the IAP at the community level. Work was completed for the previous fiscal year (to March 31) through three contracts with community organizations for outreach activities – Toronto Council Fire, Williams Lake and Grand Council #3. Four contracts are underway with community organizations to deliver IAP awareness/information activities in Vancouver, Manitoba, Saskatchewan and Ontario. These awareness activities include delivering information sessions, distributing information products, and supporting the public awareness aspects (Step 1) of the Lost Claimant Protocol.
The Secretariat has also developed and distributed several information products to support claimants and their counsel in the process, in addition to the public awareness campaign for lost claimants. This year, these included such topics as “After Your Hearing” – a step-by-step outline of what claimants should expect in the post-hearing process; fact sheets on requesting Future Care, the legal fee review process, the IAP Info Line, and the role of alleged perpetrators in the IAP; information items on the Group IAP program including a profile of a Saskatchewan Group; technical information for counsel or self-represented claimants on obtaining educational records in the various provinces and territories; and updates to previously-published items. As well, the Desk Guide for Legal Counsel, an online, comprehensive resource for law offices engaged in the IAP, was updated, and several “Notices to Legal Counsel” were posted on various procedural and legal matters. The Secretariat also partnered with Health Canada to provide claimants’ counsel with information on the services that the Health Support Services Program offers to claimants.
The Secretariat also maintained a visible presence at the final Truth and Reconciliation Commission event in Ottawa, providing an information booth with on-site support for claimants to inquire about their claims, as well as general information.
Group IAP is a contribution program designed to facilitate healing and reconciliation activities for groups of IAP claimants. Groups receive funding via an annual Call for Proposals.
Twelve contribution agreements (for 19 groups) totaling $654,500 were signed for 2015-16 under the Group IAP program (this represents the total contribution funding available). Funded activities this year include workshops on learning and understanding the impacts of Residential Schools; wellness planning; intimate partner abuse; nutrition; parenting skills; financial management; post-traumatic stress disorders – how to recognize them and ask for help; and cultural activities including Sunrise ceremonies, Pow-wows, and Sweat lodges. The Groups range from 2 to 3 members to 55 members, and are from five provinces (BC, AB, SK, MB and ON) and one territory (NWT).
One IAP Group in Saskatchewan volunteered this year to be the subject of a public profile, showcasing the program and illustrating the kinds of activities that can be funded and the positive impacts of forming an IAP Group. This profile is available on the IAP website at http://www.iap-pei.ca/information/information-eng.php?act=2015-06-10-eng.php.
In concert with Outreach and Communications activities, Group IAP staff have held multiple information and awareness sessions across the country, to promote widespread access and encourage submissions from new groups and particularly from areas that have not historically had high rates of participation.
The 2016-17 Call for Proposals for new Group IAP projects was launched in September 2015, and submissions closed December 1, 2015. Over 100 inquiries were received, and 37 proposals were submitted prior to the deadline. Initial screening has been completed, and assessment and selection of proposals is underway.
Past reports have included information on the Chief Adjudicator's work to address complaints and concerns respecting the integrity of the IAP. However, in keeping with the Court’s direction of November 25, 2014 regarding how complaints and concerns regarding issues of integrity are reported and handled, this report contains no such information. The Secretariat continues to follow the procedures put in place following the implementation of the Integrity Protocol, to monitor for potential impacts to our work planning, and to support the work of the appointed Independent Special Advisor and Court Monitor in addressing such matters.
As elsewhere reported, the Truth and Reconciliation Commission (TRC) has requested access to all IAP records, including significant personal information, for the sake of the historical record. The Chief Adjudicator, on the other hand, has asserted that the documents should be destroyed, in keeping with promises made to claimants and other hearing participants that the process and the information they shared would be kept confidential. Both the Chief Adjudicator and the TRC filed Requests for Direction to the court on the question.
On August 6, 2014 Justice Perell of the Ontario Superior Court of Justice issued his decision that IAP records should be destroyed following a 15 year retention period, and a notice program would be implemented to advise claimants of their option to provide certain IAP documents to the National Centre for Truth and Reconciliation (NCTR) should they so choose. Subsequently, multiple parties filed appeals to the Ontario Court of Appeal. In February, Justice Perell issued the order giving effect to his decision; however, much of this order was stayed pending the completion of the appeal process. Additionally, the Privacy Commissioner of Canada sought and was granted leave to intervene in the appeal.
A particular question in this matter is the requirement, per the Settlement Agreement, to establish an archive to which claimants may have their hearing transcripts deposited. The form and control of this archive and the notice program by which claimants will be informed of their choices are currently subject to debate. The TRC submitted a Request for Direction with respect to the notice program in December, 2014, but full hearings on the notice program are not expected to be concluded until the appeals to the August 2014 decision have been decided.
The Chief Adjudicator submitted facta to the courts in the summer of 2015 asserting that “the [Settlement Agreement] does not permit Canada, the NCTR or the TRC to make any other use of the intensely private information disclosed in and for the purposes of the IAP, unless the claimant consents.”
The Ontario Court of Appeal held the appeal hearing on October 27 and 28, 2015. Submissions were heard from Independent Counsel, the Sisters of St. Joseph of Sault Ste. Marie, the 22 Catholic Entities, the nine Catholic Entities, the Attorney General of Canada, the Truth and Reconciliation Commission, the National Centre for Truth and Reconciliation, the Privacy Commissioner of Canada (Intervenor), the Assembly of First Nations, and the Chief Adjudicator. Judgment was reserved and by the end of the year a decision had not been released.
The IAP website has been updated with a neutrally-worded, informational section regarding the question of records disposition, providing information for claimants and for the public. This includes information for claimants on how to obtain copies of their hearing transcripts. http://www.iap-pei.ca/records/main-eng.php
The Ontario Superior Court of Justice ruled on January 14, 2014 that the Government of Canada must release documents related to abuse suffered by students at St. Anne’s IRS in Fort Albany Ontario. The documents are from Ontario Provincial Police investigations and criminal trials conducted in the 1990s. A similar request was later brought with respect to Bishop Horden IRS. As elsewhere reported, Canada reviewed and provided records, which then led to further Requests for Directions from the applicants questioning Canada’s document production practices, the school history narrative provided by Canada, and redaction of the records produced.
In May 2015, Justice Perell supported Canada’s decision to refuse, when questioned, to provide certain details of its document coding process. In June 2015, he then provided reasons for decision and a court order granting the applicants’ motion in part. The order required Canada to revise its school narrative and POI reports for St. Anne’s IRS so as to provide further information on abuse acts; and to provide unredacted copies of any court records that were at any time publicly available to the Secretariat and, upon request, to Claimants or their lawyers for IAP hearings about St. Anne’s IRS or Bishop Horden IRS. Canada was not required to provide unredacted copies of other documents or to update the narrative for Bishop Horden IRS.
The Chief Adjudicator elected not to participate in this Request for Direction as the dispute was between the applicants and Canada. However, the Secretariat has actively monitored this matter, as its results impact on the organization’s responsibilities and the information available to adjudicators and parties. In addition, the Secretariat has undertaken enhancements to the IAP Decision Database in order to facilitate access by legal counsel to the significant volume of new documents produced by Canada pursuant to Justice Perell’s Directions.
In June 2015, Justice Perell’s Direction regarding another RFD regarding Bishop Horden IRS was released. In this case, the court dismissed the applicants’ request that Canada conduct a more sweeping search for records than had previously been done; but granted an Order compelling Canada to perform additional searches. “My ultimate interpretative conclusion,” wrote Justice Perell, “is that where an Applicant in his or her Application identifies the approximate time and place of a particular incident of abuse with sufficient particularity to allow document searches to be made, then Canada is obliged to respond to the Applicant’s request for the documents that may provide information about the incident of abuse.”
Justice Perell concluded that, subject to such requests, Canada’s document production obligations were not to be interpreted based on the Ontario Rules of Civil Procedure, but rather with reference to the methods undertaken for the ADR process that preceded the Settlement Agreement, which primarily involved a sweep of records from Library and Archives Canada.
Justice Perell did not allow the applicants’ request to the effect that the Secretariat “police” the defendants’ document production. He dismissed the applicants’ request that the Secretariat engage in “witness matching,” concluding that this would fundamentally alter the role of the Secretariat set out in the Settlement Agreement and would contravene the IRSSA privacy and confidentiality provisions (paragraphs 83-91).
Supplementary reasons for decision were provided by Justice Perell on August 17, 2015.
The Secretariat continues to monitor this matter closely, as potential remains for outcomes of this case to impact the information available to adjudicators, lead to delays for current open claims, and potentially prompt re-opening of resolved claims.
Following the ruling of Justice Perell of the Ontario Superior Court of Justice in June 2015, Canada has now provided the required updated school narratives and un-redacted court documents to the Secretariat. These have been posted in the St. Anne’s school module of the Decisions Database for availability to parties, for use at hearings. Due to time constraints in providing the updated information, Canada has also provided revised POI reports directly to hearing participants as required.
Additional Requests for Direction have now been submitted, involving a request for re-hearing of a St. Anne’s claim on the grounds that adjudication was compromised by Canada's failure to disclose documents in accordance with the Settlement Agreement. In addition to a re-hearing, the applicants seek to remove Department of Justice lawyers from representing Canada; to make certain directions to adjudicators on evidentiary and procedural matters; to estop legal counsel for Canada and church entities from opposing the admissibility of evidence; to require Canada to pay a flat legal fee to claimant counsel for re-hearings regardless of the outcome; to require the Chief Adjudicator to maintain a short list of legal counsel for re-hearings; to require the Secretariat to fund a legal education conference on the re-hearing process; and/or to require the Oversight Committee to make recommendations for amendments to the IAP to facilitate re-hearings. The Chief Adjudicator is maintaining a watching brief on this RFD.
Several Requests for Direction have been filed this year with respect to legal fees in the IAP. Following the conclusion of an IAP claim and a DCA review of the legal fee ruling made by the claim adjudicator, a Manitoba law firm, REO Lawbrought a Request for Direction to the Manitoba Court of Queen’s Bench, arguing that the fees approved could not be lower than suggested by the Chief Adjudicator’s previously published guidelines for Adjudicators on fee rulings. REO law argued that the guidelines should be considered binding, and requested the fee ruling be overturned. The Chief Adjudicator, Canada, and the AFN argued that the Request for Direction was without merit, citing precedent from the decision in a case brought to the Ontario courts by Duboff Edwards Height and Schachter, which set specific and narrow circumstances under which the Chief Adjudicator’s rulings may be appealed to the courts.
On October 7, 2015, Justice Schulman of the Manitoba Supreme Court dismissed REO’s Request for Direction in its entirety, being outside the jurisdiction of the courts and the requestor having failed to establish the matter as a serious question to be tried. Justice Schulman upheld the Chief Adjudicator’s Guidance Paper as non-binding. On January 21, 2016, the Chief Adjudicator received notice that REO Law was appealing this decision to the Manitoba Court of Appeal.
On November 20, 2015, a claimant counsel filed a Request for Direction regarding legal fees and other unrelated matters. The RFD seeks a direction that Canada is required to pay GST and applicable provincial taxes on its contribution to legal fees; a direction that adjudicators not conduct a legal fee review unless certain processes are followed; and a direction that Canada make admissions regarding student-on-student abuse at St. Anne's IRS. The Chief Adjudicator is maintaining a watching brief.
As well, the Chief Adjudicator is a named respondent in a Request for Direction by Merchant Law Group challenging adjudicators' practices in conducting legal fee reviews where the claimant was represented by more than one law firm. The case involves a dispute between MLG and lawyers at Butz Law who formerly worked at MLG. The matter is expected to be dealt with by way of written submissions in early 2016.
In the course of the investigation leading to the removal of law firm Blott & Co from the IAP in 2012, it was discovered that the firm had possession of completed applications which had not been filed. In the court’s decision in the Blott & Co case, it was declared that these affected claimants were to be considered to have met the application deadline.
The court-appointed Transition Coordinator (the Hon. Ian Pitfield) and Crawford Class Action Services continue to follow up on outstanding applications, and approximately 125 expected applications remain unsubmitted. Of these, 77 are being referred to the Lost Claimant Protocol, and the remainder are under the review of the Transition Coordinator. These include a number of deceased claimants and claims with other difficulties, such as incapacity.
To date, no additional direction has been given with respect to a deadline for their submission. Further direction from the court may be required in future for the remaining unresolved claims.
The Secretariat is in a unique position when considering its information management. As discussed elsewhere in this report, several appeals to last year’s court direction with respect to the disposition of IAP records, other continuing legal actions, the introduction of new government information management and communication system, and the beginning wind-down of the IAP add significant complexity to the task of information management planning.
The Secretariat’s neutral role in the IAP makes the segregation of its records from the department an important, though challenging necessity. Since its inception, the Secretariat has not used INAC’s Comprehensive Integrated Document Management (CIDM) system for archiving and storing records; however, until recently, a comparable system for Secretariat records did not exist. As a result, in addition to databases and shared drives for storage of IAP claim and administrative records, a significant amount of electronic content has accumulated in email boxes and archives. The introduction of the Government-wide Email Transformation Initiative (ETI) has thus created a significant challenge for the Secretariat in terms of ensuring that no information is lost or corrupted during the migration to new Email software.
The Secretariat is taking decisive measures to ensure that its record holdings are properly organized and maintained. Over the course of 2015, the Secretariat successfully negotiated a delay in implementation of the ETI to conduct testing and develop solutions, as a premature implementation could potentially risk the corruption of records protected by current court orders. The Secretariat has worked closely with the Deputy Minister, Chief Information Officer (CIO), INAC and Shared Services regarding information management issues, resulting in a comprehensive inventory of information holdings, a large-scale email clean-out initiative to identify and organize records of value held in email accounts, and the development of new policies and electronic tools for the organization and storage of information, including a separate yet complementary CIDM system to store and manage electronic records. A revised date for ETI implementation has not yet been set, but is expected in spring of 2016.
Security of personal and corporate information remains a key priority for the Secretariat. The Secretariat is actively focusing on ensuring the security of information most especially (though not exclusively) with respect to electronic records. In December 2014, the Secretariat worked with KPMG to conduct a review of security procedures and processes, and to help identify any gaps in security. The results of the review were received in early 2015, and an Action Plan has been put in place to address the key issues in KPMG’s report.
Additional mandatory security training sessions have been introduced for all staff, and the Secretariat has enhanced security measures available, such as additional security cabinets in all office locations. An organization-wide inventory of mobile information storage devices (laptops, USB keys, etc.) was conducted, designed to help identify potential risks and ensure that all mobile information storage meets security requirements. As well, the Secretariat has been conducting regular sweeps in each office, beginning with the NCR office, to ensure compliance with document safeguarding guidelines. An awareness campaign was launched in the fall of 2015 to further improve our staff’s understanding of the importance of security and the rules surrounding the safeguarding of information.
The adjudicator security manual, which was developed in 2014, continues to be monitored and additional training was provided to adjudicators during 2015.
As we look ahead to the completion of IAP first-claimant hearings, and the resolution of the IAP caseload, the Secretariat is planning for a gradual, controlled and efficient wind-down of its organizational operations over the coming years. This means balancing a decreasing workload with the need to maintain sufficient capacity to provide efficient and quality service to all remaining claims and related duties.
The Completion Action Plan (CAP) is the comprehensive, evergreen document which guides the administrative wind-down process in a transparent and well thought-out manner. The plan is composed of a number of themes, each of which encompasses several key activities and milestones. The CAP has been implemented and regular reporting is beginning. Being an evergreen process, activity plans are revisited and revised on a regular basis. A communications plan for the CAP has been developed and implemented, intended to ensure prompt and consistent information flow to both staff and external stakeholders.
Uncertainties regarding the disposition of IAP records and other court cases, our dependence on third parties (such as legal counsel) in order to meet targets, and funding availability are adding extra challenges to completion planning. In particular, maintaining the necessary skilled, dedicated labour force to complete all required activities will be essential while simultaneously managing a controlled wind-down in the coming years.
An important element of the CAP surrounds the provision of information and support to staff who will be affected as the organization begins to reduce in size in the coming year. For example, two critical activities in the plan are Future Employment Resource Development, and retention and succession planning for staff. A Retention Strategy has been developed and is beginning implementation. As well, following a thorough review of all Secretariat positions, a number of key positions have been identified as ‘critical’ with respect to succession planning.
The 2012 Budget provided funding for the IAP only until 2015-16. The Secretariat is working with INAC and Health Canada on a Treasury Board Submission to secure funding for 2016-17 and 2017-18, and, is currently operating with the aid of funds reprofiled from the previous fiscal year, and funds provided by INAC. It is anticipated that, before the full completion of the IAP mandate, further Treasury Board submissions may be required. Although reprofiling of funding mitigated the budget shortfall previously identified for the current fiscal year, there are some unexpected costs, particularly in terms of legal fees, travel costs, and adjudicator costs due to increased involvement in special initiatives and higher proportions of Complex Track files (which require specially trained adjudicators). A surplus of funds is projected for the current fiscal year due in large part to the inability to hold the targeted number of hearings and associated activities.
During 2014 and 2015, monitoring exercises were conducted in a number of areas with high dollar values (e.g., hearings management, adjudicator contracts). Based on these examinations, action plans were prepared and addressed during 2015. In addition, adjudicator billing guidelines were revised and ongoing reporting on adjudicator fees has been implemented. Increased financial monitoring and administrative support for adjudicator contracts, legal contracts and contracts with Crawford have been introduced to ensure strong fiscal accountability.
Significant progress has been made with respect to procurement in this calendar year. With the IAP lasting longer and encompassing a much higher number of claims and level of complex issues than originally anticipated, contracts with adjudicators and with legal representation services to the Chief Adjudicator and others were reaching the limits permitted by the Financial Administration Act for individual departments. After a significant amount of negotiation with respect to ensuring a transparent process which would also take into account the need for continuity of service, nearly all of these contracts have now been transferred to PSPC (formerly PWGSC, Public Works and Government Services), which holds a higher contracting authority, and a limited tendering process is in preparation for the coming year.
The Secretariat’s Integrated Human Resources Plan for 2015-2018 places significant emphasis on the need for the development, training, and wellness of current staff and new hires so as to facilitate the retention and movement of staff between functions to meet new needs in post-hearing operational and administrative areas while pre-hearing operations decline.
The Secretariat now finds itself in the complex position of staffing some positions while at the same time planning for the gradual reduction of positions as we approach the completion of the IAP. The completion of a number of staffing processes and use of in-house assignments are helping to address key vacancies and bring stability to some skilled and leadership positions, and several staffing pools have been established at multiple levels. Although vacancies have decreased, there remains a reliance on casual and student hires which has become a specific strategy rather than bringing on new FTEs. Retention of skilled staff and ability to attract additional individuals for key positions continues to be a growing priority for the Secretariat.
In the spring of 2015, a small number of staff reductions occurred at the Secretariat. In addition, extensive planning occurred leading up to further controlled reductions of the workforce in 2016-17, as individual functions continue to close down and merge. Meanwhile, it is to be expected that experienced staff will begin to seek new opportunities. During this time maintaining a balance between retention, retraining and reduction will be key to ensure that sufficient staff with the appropriate skills and experience is available through the end of the process. Wellness, continued training and attention to employee morale will be crucial.
A key aspect of the Secretariat’s Human Resources Plan and retention strategy is the training of staff and managers, both in terms of cross-training for current operational needs to enhance flexibility of staff movement between positions, and in terms of career development for individuals and skills building for managing change. It is hoped that enhanced access to career development and training opportunities will benefit the Secretariat through the acquisition of new skills among existing staff, provide an incentive for existing staff to remain with the Secretariat, and reduce costs pertaining to Workforce Adjustment provisions. Operational, ‘hands-on’ staff training for existing and new roles and responsibilities will become more resource-intensive in the future, as the number of experienced staff declines, and dependence on students, casuals, and other temporary workers increases.
In addition to group and individual training, the Secretariat has also been working to identify and promote opportunities for future employment and career opportunities for our staff as we move towards wind-down. These measures are important in supporting staff morale, reducing the stresses and administrative burden of Workforce Adjustment measures, and retaining skilled staff to the end of the mandate.
The Executive Director and senior staff have met with numerous federal departments in the cities of each of the Secretariat’s offices, to discuss position competency profiles and the timing of wind-down activities. A voluntary staff questionnaire on interests and experience has been developed to help match interested individuals with potential opportunities. In September, employees from the Regina office had the opportunity to attend the All Nations Jobs Exposition with vendors primarily from the private sector, and in December, the Secretariat hosted its own Career Information Session with information booths and presentations from various provincial and federal departments and local learning institutions.
Additionally, in August, staff were provided comprehensive employment resource guides customized to each location (Vancouver, Regina, Winnipeg, and the National Capital). These guides contain information on available job search tools, opportunities with municipal, provincial, and federal governments, networking, top employers, and options for education, work exchanges, and networking.
The nature of the IAP is such that many Secretariat staff are exposed on a regular basis to material which may be disturbing or traumatic. This, added to workload concerns, increasing stress due to wind-down, and change fatigue makes an organizational commitment to staff wellness a high priority.
The Secretariat has put into place a comprehensive Wellness Strategy, which is maintained and renewed by a cross-organization wellness team and championed by the Executive Director. The Wellness Theme for the 2015-16 fiscal year was “Looking Ahead – You’re in the Driver’s Seat”, with a focus on empowering staff to take action in their personal and career development, to see the opportunity inherent in change, and to take advantage of supports and opportunities for improving health and wellness both in and out of the workplace.
A priority for the Secretariat in the upcoming fiscal year will be to promote values and ethics to strengthen its management practices and help to support employee morale and wellness. In spring 2015, the Secretariat received the results of the 2014 Public Service Employee Survey (PSES) – a cross-governmental survey on various areas such as management practices, employee satisfaction, and workplace/organizational health. While results showed that the Secretariat has made progress in past years in several areas that had been identified as issues in the 2011 survey, responses also indicated that there is a need to have a better understanding and implementation of the values and ethics of the public service in our organization, particularly with respect to questions of interpersonal interactions in the workplace. The Secretariat is developing a Values and Ethics Action Plan to ensure values and ethics are integrated into the organizational culture. Included in the action plan will be options for engaging staff at all levels in meaningful dialogue, training, and awareness building on issues such as aboriginal culture, creating a workplace respectful of diversity and preventing unacceptable practices such as harassment or discrimination. This action plan will build on existing programs to ensure that values and ethics is more fully incorporated into decision-making practices and is understood by employees at all levels within the Secretariat.
The framework for Occupational Safety and Health (OSH) will also continue to be implemented across the IRSAS’ offices to address the safety and health issues inherent in the work environment. Members of the OSH committees will continue to educate managers and staff to instill safe work habits conducive to a safer work environment that will allow for more prevention than reactive corrective measures to injury on duty.
In the spring of 2013, the Oversight Committee tasked the Secretariat with preparing a report which examines the extent to which the Secretariat has achieved the objectives of the IAP.
The Secretariat continues this multi-year project, with the objective of submitting the final report to the Oversight Committee in 2017. Although it is addressed to the Oversight Committee, it is anticipated that this report will form a significant historical record of the IAP and may ultimately be of interest to IAP claimants, Indigenous groups, governmental and non-governmental entities, academic researchers, and future similar reconciliation/restitution processes which may be undertaken.
Beginning in early 2016, consultations, interviews and focus groups will commence with multiple stakeholders representing the parties to the agreement and other stakeholders. Interview guides and information materials have been finalized. In December, the Executive Director and senior officers met with seven community service providers to gauge interest in delivering claimant engagement sessions in Vancouver, Lethbridge, Yellowknife, Montreal, Winnipeg, Sault St. Marie, and Saskatoon. As well, to increase awareness and participation, the Secretariat has begun communicating with claimant counsel, advising them of the upcoming interview sessions.
In addition to claimants, over 20 other stakeholder groups have been identified to contribute to the Final Report, including Parties to the Settlement Agreement, Oversight Committee Members, RHSWs, adjudicators, administrators and others involved in the creation and implementation of the IAP.
As we look ahead to the coming years, we expect that there will be many opportunities and challenges including new and continuing court actions, the complexities of remaining claims, and the continuing wind-down process. The work will require consistent and dedicated effort from all involved in the IAP.
To meet these challenges, the Secretariat has set the following strategic objectives and priorities to guide it through the 2016-17 fiscal year:
The past year has been marked by significant change and challenge, but is nonetheless a year of which we can be proud. Through dedicated efforts by all concerned and the implementation of numerous targeted approaches we have made great strides in completing the majority of first claimant hearings by the spring of 2016 as envisioned in the Completion Strategy. We have reached out to claimants with whom contact has been lost, and reconnected many of them to the process to complete their claims. We have introduced measures to support self-represented claimants, and to connect those who desire it to legal representation. We have also implemented the IFR Procedure and are concentrating on post-hearing work. We have supported communities and claimants in healing and awareness activities through outreach and Group IAP. We have witnessed and participated in a number of historic court actions to protect the rights of claimants to their privacy and to affirm the authority of adjudicators granted by the settlement agreement, and we have begun the difficult but necessary process of bringing the process, and the mandate of the Secretariat, to a close.
Bonnie Grohs, a long time staff member with the Secretariat located in Regina, passed away on Friday, February 5, 2016 following an illness. Bonnie was a Hearings Management Officer responsible for supporting claimants with their hearing logistics. She was highly claimant focused and worked tirelessly to give claimants an opportunity to be heard. Sincere condolences go out to Bonnie’s family and friends for their loss.