Notices to Counsel
Freeze Lifted: Estate Claims can only proceed in specific circumstances
February 2, 2015
A freeze on estate claims in the Independent Assessment Process has been lifted following review and re-review decisions in several important IAP cases by Chief Adjudicator Dan Shapiro. The cases involved IAP claims brought by estates on behalf of deceased claimants.
In these decisions, Chief Adjudicator Dan Shapiro has provided clarification on the general principles applicable to estate claims:
- There is a presumption that estate claims cannot be pursued in the IAP, but there are three possible exceptions:
- Where the claimant has testified at an IAP hearing;
- Where the claimant has previously given meaningful and reliable sworn testimony in some other forum, and Canada has participated in the questioning; or
- Where there is eyewitness testimony to the alleged abuse.
- Unless one of these exceptions applies, an adjudicator has no jurisdiction to hear the claim and must dismiss it.
- If the claim is pursued on the basis of exceptions (a) or (b), all elements of a claim except future care may be considered.
- If a claim is pursued on the basis of exception (c), eyewitness testimony, the following limitations apply:
- The eyewitness testimony will be heard only in relation to the allegations of abuse. It will not be considered in relation to consequential harms, aggravating factors or opportunity loss.
- Eyewitness testimony may be relied upon to support a finding of acts proven only if it is sufficient to support all elements of the liability criteria applicable to that claim.
- The eyewitness must be made available for questioning by the IAP adjudicator and the defendants must be given an opportunity to provide input into the questioning.
Depending on the evidence available, it can be very difficult to pursue an estate claim.
Only the executor or administrator of an estate can pursue an estate claim. Counsel that represented a claimant who passed away does not automatically represent their estate. The estate must hire the lawyer or retain a new lawyer if they wish to do so.
There are four main steps to pursue an estate claim:
- Determine if the claim is eligible to proceed.
- Decide on legal representation and submit estate documents.
- Participate in a pre-hearing teleconference.
- Prepare for and attend the hearing.
Because of the unique nature of these claims and the need to resolve them in a fair and orderly manner, the Indian Residential Schools Adjudication Secretariat has established new procedures for Estate Claims in the IAP. See Information Sheet on Estate Claims.
The Indian Residential Schools Adjudication Secretariat has established an Estate Claims Coordinator who can provide information and answer questions about the procedures for estate claims.
Phone: 1-877-635-2648 and ask for the Estate Claims Coordinator