Publications | Annual Reports

Annual Report: 2016

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Table of contents

IRSAS Management


  • Daniel Shapiro, Q.C.
  • Chief Adjudicator
  • Catherine Knox
  • Michel Landry
  • Rodger W. Linka
  • Wes Marsden
  • Delia Opekokew, L.S.M. (DCA Emeritus)
  • Susan Ross
  • Lisa Weber
  • Deputy Chief Adjudicators
  • Shelley Trevethan
  • Executive Director

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About the Indian Residential Schools Adjudication Secretariat

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., whose appointment by the IAP Oversight Committee was confirmed by the Courts.

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Message from the Chief Adjudicator

I am pleased to release my Annual Report for 2016, 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). This has been a year of significant milestones and we have seen a great deal of progress. Simultaneously, new challenges and questions have arisen, including many complex legal and procedural questions, many still to be resolved. I, my fellow adjudicators, and the Secretariat have worked hard with the parties and stakeholders to the Agreement and the Courts to bring resolution to these questions in a manner that is claimant centred, yet fair to all concerned. As the Chief Adjudicator, I am very pleased by the results we have achieved this year.

Performance

In December 2013, I prepared my Completion Strategy to the Courts, outlining how the Secretariat would work to complete the IAP case load in the following years. The IAP Completion Strategy projected that all first claimant hearings would be concluded by the spring of 2016.

With my full support and that of the Deputy Chief Adjudicators and IAP Oversight Committee, exceptional efforts were undertaken by Secretariat staff in order to achieve this ambitious goal. Among these initiatives were: identifying and removing obstacles to claimants obtaining mandatory documents, fully implementing the Accelerated Hearing Process, law firm visits from Senior Secretariat staff to counsel representing the majority of the claims then remaining within the IAP, developing targeted approaches for claims that were blocked, and assisting the IAP Oversight Committee to develop and maintain a list of counsel willing to accept referrals from self-represented claimants. These initiatives, representing areas within the control of the Secretariat, have resulted in us effectively having reached the IAP Completion Strategy target regarding the conclusion of first hearings. By the end of March 2016, of the 38,087 applications which had then been received, fewer than 300 active claims remained which were expected to proceed to hearing2. Since then, through the successful implementation of the Lost Claimant Protocol, and dedicated efforts to reactivate stalled claims at various stages including the Incomplete File Resolution Procedure, we have seen additional files added to the hearing queue, and at the close of the year are still holding hearings (though at a much-reduced rate). With only a handful of first hearings yet to be heard, the focus of the process has now turned to the finalization of decisions and the resolution of remaining claims.

In 2016, the Secretariat resolved3 2,418 claims. This includes 1,814 IAP decisions (including dismissals), 148 claims resolved through the Negotiated Settlement Process (NSP), and 456 claims which were withdrawn by the claimant or deemed ineligible for the process. Since implementation of the IAP to December 31, 2016, of the 38,096 applications received, 36,403 (96%) have been resolved. Including negotiated settlements, awards, legal fees and disbursements, $3.09B has been paid.

As of December 31, 2016, 1,693 claims remained in progress. Approximately 46% of these were in the post-hearing stage, and the remainder had not yet had a hearing. Importantly, it is estimated that less than 10% of the unheard claims are likely to proceed to a hearing, the majority likely to resolve through other means, such as lost claimants whom we have not been able to locate, deceased claimants, claimants in the process of withdrawing their claims, negotiated settlements in progress, and others. Over 42% of the remaining claims involve unrepresented claimants. Although the number of unrepresented claimants has decreased as claims are resolved, the percentage of unrepresented claimants among remaining claim continues to increase.

Success stories: The Lost Claimant Protocol and the Incomplete File Resolution Procedure

Of the several process improvements introduced in the past few years in order to better serve claimants and complete the IAP mandate, the Lost Claimant Protocol (LCP) and the Incomplete File Resolution (IFR) Procedure stand out as particular success stories. These two processes4, created in collaboration with the Oversight Committee and the NAC and approved by the Courts in June 2014, have made a significant difference in our ability to resolve remaining claims while providing extraordinary safeguards to claimants, and allowing every reasonable opportunity to allow each claim that can proceed to hearing to proceed to hearing.

In my respectful view, the LCP is an extraordinary process. It was developed to allow the Secretariat the necessary authorities to access information in its attempts to locate and re-establish contact with claimants who could no longer be reached by the process, while at every step protecting these persons’ privacy. To my knowledge, it is unprecedented among tribunals in its goal and methods to reach vulnerable people who have lost contact with the tribunal. As of December 31, 2016, of the 763 file referrals5 to the LCP, 478 claimants had been located and returned to the regular file stream or have been assigned to another targeted approach, with the Secretariat still actively searching for 34. Searches have been exhausted on 251 claims, which have subsequently been referred to IFR or were non-admitted. By any measure, the LCP has been a huge success.

The goal of IFR is to remove obstacles to cases proceeding to hearing and where possible to return cases to the regular hearing stream. Where this is not possible, Step 2 of the IFR provides adjudicators the authority to dismiss claims without hearing, but not before all possible avenues to reactivate the claim have been exhausted. This process is highly complex due to the extraordinary safeguards for claimants before files may be dismissed. Although, as discussed below, we have encountered obstacles to the full implementation of this procedure for some file types, the IFR is now in full implementation and achieving significant results. As of December 31, 2016, there were 657 files in the IFR procedure (240 in step 1 and 417 in Step 2), including non-participating claimants; non-participating estates; deceased claimant files with no estate representative; lost or incapacitated claimants. Importantly, a total of 418 claims which had been referred to the IFR have returned to the normal hearing stream or other targeted approaches; exactly what the IFR was designed to achieve. While by no means complete, the IFR has been another success story.

The Changing Environment: Challenges and Risks

Potential New Claims

Even as we look ahead to the resolution of the remaining claims currently in inventory, there is still a possibility that the IAP may yet receive additional claims, as a result of unresolved Article 12 applications and appeals, as well as other matters before the courts. Article 12 of the Settlement Agreement allows for the addition of an eligible Indian Residential School to Schedule F of the Agreement. Canada may agree to add the proposed institution, or if Canada declines to do so, the applicant may bring a Request for Direction (RFD) to one of the supervising courts. Several institutions have been added pursuant to Article 12. The Chief Adjudicator is not a party to these proceedings.

The supervising courts have set a deadline for bringing such RFDs, which has since expired; as a result, no further applications to add institutions can be brought. However, as of the time of writing, four applications remain at various stages before the courts, with the combined potential to add as many as 2,340 potential new class members to the agreement. Historically, an average of 47.5% of potential eligible class members have filed IAP claims. While it is possible that none of these schools may ultimately be added to the agreement, it is necessary to plan based on the possibility that all of them may be.

  • On December 16, 2016, the Supervising Judge in the case of Kivalliq Hall (Nunavut) released the decision permitting the addition of this facility to the list of schools. However, we have since learned that Canada is appealing the decision. Should this decision stand, an estimated 100 class members could be added to the agreement.
  • On January 4, 2017, the Manitoba Court of Appeal dismissed the application to add the Teulon Residence to the agreement; however, the applicants have requested leave to appeal this case to the Supreme Court of Canada, and it is not yet known if the appeal will be accepted. Should this school be added to the agreement, up to 980 potential class members could be added.
  • The Saskatchewan Court of Appeal heard the case of Timber Bay school in September, 2016, which had previously been dismissed, and the decision on that appeal remains pending. Should that appeal be successful, up to 650 new class members could join the agreement.
  • The case of Fort William Sanatorium School (Ontario) has not yet received a decision, and written submissions in the case are due in August 2017. If the RFD is successful, this case could potentially add up to 650 additional class members to the agreement.

IAP Document Disposition

In August 2014, in response to Requests for Direction filed by the Truth and Reconciliation Commission and the Chief Adjudicator, Ontario Superior Court Justice Perell released his decision regarding the final disposition of IAP documents following the conclusion of the process, ruling that: a) all but four specific categories of records (application forms, hearing transcripts, audio recordings of hearings, and decisions) should be destroyed, and that b) those four categories of records would be retained for up to 15 years from the date of the claim’s conclusion, in order to inform each claimant of their rights and provide them the opportunity to choose whether they wish to have their records preserved. Following that fifteen-year period, documents that the claimant has not chosen to preserve would be destroyed. This decision was appealed by Canada, the TRC, and others, and on April 4, 2016, the majority of the Ontario Court of Appeal panel that heard the appeals upheld the ruling, with some revisions, with one judge dissenting. The appeal decision confirmed the independence of the Secretariat and the status of IAP records as under the control of the court, and delegated the responsibility for the Notice Program to inform claimants of their rights to the Chief Adjudicator. The decision also added former Dispute Resolution Models claims to the scope of the order. Canada has appealed the decision of the Ontario Court of Appeal to the Supreme Court of Canada, which will hear the case in May 2017. Further background and court documents regarding this case are available on the IAP Web site.

http://www.iap-pei.ca/records/main-eng.php

The IAP is, and has always been, a confidential process, and it has been my position in this matter that, unless the claimant chooses otherwise, the documents collected and created under the process should be destroyed to protect this highly sensitive and personal information. Without the assurance of privacy, many claimants may not have been willing to undergo a hearing or to participate in the process, and I have been vigorously advancing the position in the courts that those assurances must be upheld.

With the Court of Appeal’s decision now under appeal to the Supreme Court, our ability to prepare for the disposition of documents is constrained. While preserving all documents subject to the order, the Secretariat has begun organizing and preparing hard copy and electronic records by identifying and separating out the four specified document types and ensuring files are correct, secure, and easily locatable. Additionally, I, with the support of the Secretariat, have begun preliminary meetings with the affected stakeholders to discuss planning for a Notice Program, so that, once the Court’s direction is provided, if the decision of the Ontario Court of Appeal is upheld by the Supreme Court of Canada, claimants may, upon further court approval, be informed quickly, sensitively and effectively of the decision and the choices available to them.

Requests for Direction (RFDs)

This year has seen an unprecedented level of Court activity with respect to the IAP, with multiple RFDs filed by various parties on a number of different topics. These RFDs are addressing important questions, and many bear the potential to have significant impacts on our processes and our planning, including our ability to bring the IAP to its close within the previously projected timelines.

Out of respect for the sensitivities of matters before the Courts, and the responsibilities of other bodies to report on such matters, I will avoid going into significant detail on ongoing RFDs beyond general information and the potential impacts we must consider in our administrative planning.

Judicial Recourse: A group of five RFDs submitted on individual cases, seeking to overturn decisions of re-review adjudicators, was heard by Justice Brown of the British Columbia Supreme Court in November 2016. Justice Brown denied relief for all five RFDs. Further, the court provided clarification on the high standard necessary in order to access the court. The court also established deadlines for bringing such RFDs: February 27, 2017 for re-review decisions released previously and 30-days from the release of re-review decisions rendered after November 29, 2016. It is expected that this decision will assist in providing a necessary finality to the IAP. Two of the five claimants whose RFDs were dismissed by Justice Brown have appealed the dismissal to the British Columbia Court of Appeal.

SL 1.4 Interpretation: In February 2016, an RFD was filed on behalf of a claimant arguing that the adjudicator in the case had misinterpreted and misapplied the “SL 1.4” form of sexual abuse as defined in the Settlement Agreement, and requesting general direction on the interpretation of this category of abuse. In August 2016, Manitoba Supervising Judge Edmond J ruled in favour of the applicant, and referred the claim back for reconsideration by a first-level adjudicator. Canada appealed this decision and obtained a stay of the order pending appeal on December 22, 2016. This case has the potential to impact an undetermined number of previously decided IAP claims involving the SL 1.4 category of abuse.

St. Anne’s IRS: This RFD, submitted in March 2016, requests the re-opening of decided claims involving St. Anne’s IRS in Ontario, following a complex series of legal actions in the past years with respect to the provision of documentary evidence by Canada, among other issues. The RFD also requests the extension of the IAP application deadline for former students of that IRS who provided statements to the Ontario Provincial Police in the 1990s. Hearings in this matter, and another RFD submitted for an individual claimant who attended St. Anne’s, are scheduled in March 2017. This RFD, if successful, could potentially impact decided claims and result in the submission of an unknown number of new claims.

Blott claims (timelines): As discussed in past reports, when the law firm of Blott & Company was removed from the IAP in June 2012, Justice Brown of the British Columbia Supreme Court directed that applications which had been collected by that firm but not submitted to the IAP would be ‘deemed submitted’ for the purposes of the IAP deadline. At that time, Justice Brown did not provide a deadline for such claimants to participate in their claims. Despite significant efforts by the court-appointed Transition Coordinator, appointed successor counsel, and the Secretariat in the intervening years to locate and contact these former Blott claimants, there have remained a small number who have not been locatable or who have not responded to attempts to reach them and obtain their participation. Following a RFD from the Blott Transition Coordinator, on October 31, 2016, the Court directed that Blott claims in which claimants had provided no further information by that date could be barred from the IAP, with certain files given extensions to December 31, 2016. In cases where Canada had jurisdiction over the estate of a deceased claimant (see below), the deadline would be further extended.

Files on hold: Administrative Splits, Student-on-Student Cases, and Estate Jurisdiction

In addition to legal matters before the courts with the potential to add or reopen claims in the IAP, in 2016 we also encountered delays on existing files, where it has been necessary to place certain files on hold while procedural and technical questions are resolved.

In February 2016, the Minister of Indigenous Affairs announced in the House of Commons that the department would undertake an urgent review of Canada’s position regarding “Administrative Splits” – cases where the classroom portion of an Indian Residential School was removed from the direct control of those who managed the residence, beginning in the 1960s. The Administrative Split affected the outcome of a number of claims in the IAP when Canada began to raise objections to some claims in 2010. Canada argued that it was not required to compensate for abuse that occurred in classrooms that were no longer part of the residential schools for which it was responsible, and some adjudicators' decisions accepted Canada's argument. At Canada’s request, following the Minister’s announcement, I agreed to place on hold the small number of remaining in-progress claims which could be impacted by an Administrative Split, pending the outcome of the review. As of December 31, 2016, this review was still underway, and those claims had not been able to progress to decision.

In claims involving claims of abuse by another student, decisions can be significantly impacted by the results of previous claims which can provide critical evidence leading to admissions by Canada of staff knowledge of such abuse occurring at the school at the time. Therefore, claims involving such abuse have been entered into a targeted approach meant to ensure that claims deemed to have the highest likelihood of providing evidence leading to admissions of staff knowledge are handled before those claims which could benefit most from them. However, this process has been significantly time consuming, and despite concerted efforts by the Secretariat, Canada, and members of the Technical Sub-committee to find efficiencies to progress Student-on-Student (SOS) claims in a timely manner, and a 58% reduction since January 2016, by the end of the year, 338 claims remained in the SOS project.

Since the process to continue estate claims for claimants who have passed away was established in early 2015, the Secretariat has made significant progress in contacting these estates and resolving this caseload. However, we are now encountering difficulties in cases where the Government of Canada bears responsibility to administer estates for some claimants who pass away without an identified estate representative. Due to the conflict of interest this could represent, in such cases, Canada must work to identify an alternate representative for the estate. This has caused significant delays in the resolution of these claims; nearly one-third of the claims which had not yet been heard at the close of the year were on hold at Canada’s request due to jurisdictional issues surrounding estate claims.

Adjudicator Capacity

As the IAP proceeds towards its conclusion and the number of hearings and unresolved cases remaining declines, adjudicators and Deputy Chief Adjudicators are working hard to resolve their ongoing caseloads, and some adjudicators are beginning the transition to new opportunities.

Over the past year, no fewer than 15 adjudicators have completed their work in the IAP, and additional adjudicators are in the process of winding down their IAP responsibilities. Many of these colleagues have taken on new tribunal or other work, and it is gratifying to see so many IAP adjudicators taking on exciting new responsibilities. I wish to acknowledge the many outstanding contributions of departing colleagues to the success of the IAP and to wish them all the best in their new endeavors.

Currently, the IAP’s adjudicative capacity stands at six Deputy Chief Adjudicators, four of whom carry an active writing docket and caseload of adjudicators, and 67 adjudicators, including some who have advised their intention to depart, and are concluding their existing dockets; this is down from approximately 100 adjudicators when the IAP was at its peak. However, given that, during the peak of the Alternative Dispute Resolution process functioned with approximately 40 adjudicators dealing with over 1000 cases per year, at this point in time it is felt that there should remain sufficient adjudicative capacity to address foreseeable eventualities.

Completion of the IAP

The potential admission of one or more Article 12 schools to the Settlement Agreement, or the potential re-opening of previously resolved claims or addition of new claims as a result of the RFDs discussed above, and delays already resulting from procedural and technical questions bear significant consequences in terms of planning for the coming years. The Secretariat, adjudicators, and the various parties and stakeholders to the agreement must carefully consider the timelines anticipated for the completion of the process, and the amount and kinds of resources that may be anticipated in the coming years. As we consider our obligation to ensure a responsible and controlled wind-down of the process and of the Secretariat as an organization, we must also ensure sufficient capacity to provide any claimants entering or re-entering the process via these legal actions a just, compassionate, and claimant-centred IAP experience.

Meanwhile, we must maintain a transparent and collaborative planning process involving all stakeholders when considering the real and potential impacts of the changing environment, and recent and future legal decisions, to the timeline for the IAP’s completion projected in the 2013 Completion Strategy. Therefore, with the support of the Secretariat, I have begun to draft an update to the Completion Strategy, examining the various risks and their potential impacts in greater detail than discussed here. This update will involve significant consultation with the stakeholders and governance bodies involved, including the Oversight Committee and the National Administration Committee, prior to its submission to the Courts.

As the remaining caseload moves ever closer to resolution, it is necessary for the Secretariat as an organization to begin the process of an orderly and efficient wind-down, including decreasing its staffing levels. Should it be necessary to ramp up operations once wind-down has begun, the Secretariat will face significant challenges in both recruiting and retaining experienced, skilled staff members (and, if required, adjudicators) to complete the required work, and further funding submissions will be required to provide the necessary financial resources.

While much remains to be done, it is important to pause, look back and acknowledge and celebrate successes. We are now at the point of practical conclusion of first claimant hearings; a major milestone. We are fortunate to have benefited from the steady, stable, creative and determined leadership of the IAP Oversight Committee, including Chair Mayo Moran, and the committee members, including two, David Paterson and David Iverson, who have been on board from the very beginning. On the Secretariat side, we are fortunate to have benefited from the dedication and commitment of Shelley Trevethan, and from many long-term and capable Secretariat staff members. The creative and dedicated work and support of the DCAs has been indispensable. Our adjudication team, while reduced in numbers, remains the face of the IAP, and remains committed to concluding the IAP in a good way, with the objective of ensuring that the process remains claimant friendly throughout the wind-down process. I am grateful for the contributions of so many people to the success of the IAP.

Notable

I would like to extend my congratulations to former Winnipeg adjudicator, Lore Mirwaldt, Q.C., whose accomplishments were recognized in her recent appointment to the Manitoba Court of Queen’s Bench.

In Memoriam

New Brunswick Adjudicator Richard Hatchette passed away in August 2016 after a lengthy battle with cancer. Richard was a valued member of our adjudication team since he was first appointed as an IAP adjudicator in 2008. Richard had a highly positive impact on many people whose lived he touched throughout his tenure as an IAP adjudicator.

All of which is respectfully submitted,

Daniel Shapiro, Q.C. Chief Adjudicator

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Key Numbers6

Since implementation of the IAP to December 31, 2016, 38,096 applications had been received by the Secretariat, of which 33,796 have been admitted. There were 39 active claims awaiting a decision on admission/non-admission (all had been reactivated following a previous non-admit and/or returned to active status following loss of contact). Additionally, there were approximately 17 deceased or lost claimant files without an admissions disposition.

A total of 793 IAP claims were processed7 in 2016 (see Figure 1), for a total of 30,958 since the beginning of the process. This figure is a marked decrease from past years; this reflects the progress made towards completing the processing of all remaining claims. The majority of admitted claims have now been processed, leaving only a small number of claims yet to be heard (or a settlement negotiated); most of these being reactivated lost claimants and claims with specific legal matters pending resolution.

Figure 1: Files Processed per Calendar Year

Files Processed per Calendar Year

As illustrated in Table 1, 2,418 applications were resolved in 2016, through an adjudicator’s decision, negotiated settlement or due to withdrawal or ineligibility. In total, 36,403 claims had been resolved by December 31, 2016, approximately 96% of all applications received.

Applications Received and Resolved by Calendar Year

Calendar Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Total
Applications received 3,849 5,418 4,750 5,148 5,494 12,786 372 132 48 98 38,096
Applications resolved 404 1,518 3,062 4,205 4,481 5,321 6,334 4,989 3,671 2,418 36,403
Adjudicator decisions 322 1,081 2,087 3,210 3,377 3,932 3,944 3,739 2,650 1,814 26,156
Adjudicator Jurisdictional decisions 0 0 0 2 12 21 53 75 54 30 247
Negotiated settlements 0 55 444 481 626 720 814 513 530 148 4,331
Ineligible/ withdrawn 82 382 531 512 466 648 1523 662 437 426 5,669

Figure 2 : Hearings Held and Decisions8 Issued by Calendar Year

Hearings Held and Decisions Issued by Calendar Year

Negotiated Settlement Process (NSP)

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.

Although the Secretariat is responsible for creating the evidentiary packages and adjudicators are responsible for conducting legal fee reviews in such cases, the NSP is handled primarily by Canada9 rather than the Secretariat, and has been an important path to file resolution. 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.

Figure 310 : Negotiated Settlements by Calendar Year

Negotiated Settlements by Calendar Year

The Changing Caseload

In 2015’s annual report, an increasing proportion of post-hearing vs pre-hearing files was noted. Per Figure 4 below, in 2016, we can see that the number of post-hearing files pending decision reduced more rapidly over time; this may be reflective of concerted efforts by the Chief Adjudicator, DCAs and adjudicators to reduce decision-writing times and to more closely monitor caseloads, reassigning claims where necessary, to ensure that claims remain at the post-hearing stage no longer than necessary. Meanwhile, the slower pace at which the inventory of claims expected to resolve through means other than hearing declines is reflective of the higher complexity of this portion of the caseload, the portion of estate claims on hold pending confirmation of Canada’s estate jurisdiction, and the significant time and effort dedicated to ensuring all efforts are made to offer these claims the opportunity for a hearing wherever possible.

Figure 4 : Pre- and Post-hearing Admitted Caseload, 2016

Pre- and Post-hearing Admitted Caseload, 2016

As demonstrated below in Figure 5, unrepresented claims continue to resolve much more slowly than represented claims. Additionally, we continue to see claimants becoming involuntarily unrepresented when their lawyer chooses to withdraw from their claims. Although they do not yet constitute the majority of remaining in-progress claims overall, by the end of the year, unrepresented claims outnumbered represented claims throughout the pre-admission and pre-scheduling stages and among claims expected to resolve without a hearing.

Figure 5 : In-Progress (total pre- and post-hearing) caseload by representation status

In-Progress (total pre- and post-hearing) caseload by representation status

We continue to see a trend identified last year in the gradual decline in the use of Short-form decisions and negotiated settlements. This comes as no surprise because the complexity of the remaining files, shorter time periods following admission prior to hearing, and the increased proportion of evidentiary documentation being collected after a hearing are not as feasible to resolve through those methods, and require increased time and file management efforts by Secretariat staff, adjudicators, and parties to resolve. As expected, the overall proportion of dismissals is also slowly rising.

Figure 6 : File Resolution by type

File Resolution by type

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Resolving the Remaining Caseload

In December 2013, the Chief Adjudicator prepared a Completion Strategy and submitted it to the Courts, describing his plan to complete all first claimant hearings by the spring of 2016. Through the dedicated efforts of all parties, Secretariat staff, adjudicators and governance bodies, this goal was successfully met, with the vast majority of IAP first claimant hearings completed by March 31, 2016. Claims receiving first hearings after that date include claims where the claimant could not be located, but was then located; claims returning from the Incomplete File Resolution Procedure, and late file admissions for Blott claimants or following the receipt of new information on previously non-admitted claims, among others.

This section describes the progress made and challenges faced in 2016 to provide claimants with the opportunity to have a hearing, and to resolve the remaining caseload.

Process improvements:

The Secretariat, with the support of the Chief Adjudicator, has introduced a number of process improvements this year which have improved efficiency and supported efforts to ensure timely hearings and decisions. While some of these changes may appear to be minor ‘tweaks’, they have made real contributions to the timeliness and efficiency of claim processing.

  • Individual, ongoing follow-up with counsel and self-represented claimants, coupled with reduced tolerance by adjudicators for inessential postponements and cancellations;
  • File-by-file caseload auditing of unrepresented pre-hearing claims to identify barriers and provide individualized recommendations for how each might be helped to progress;
  • Combination of Early Track Assessment and Pre-hearing Conference calls for Self-represented claims in the Complex track;
  • Scheduling Complex track hearings at the same time as setting the Pre-hearing conference call, reducing time required for scheduling;
  • The ‘logistics window’ (time allocated between scheduling and hearing for logistical arrangements) has been shortened;
  • The Chief Adjudicator has instructed all adjudicators to book final submissions calls, complete overdue decisions, and advance claims with outstanding document collection;
  • Secretariat staff have taken a more active role in scheduling final submission calls, to ensure these take place promptly;
  • Following caseload analyses, multiple files, including the majority of claims requiring jurisdictional review, have been reassigned among adjudicators to relieve pressures, ensure equitable workloads and expedite the resolution of claims. This effort reduced the remaining Jurisdictional caseload from over 100 to 38 by the end of March.
  • A targeted initiative assigned specially-trained adjudicators to intervene for claims where involuntarily unrepresented claimants had been unable to retain counsel. By the end of June, only three such claims remained outstanding;
  • Internal unit reorganization, including the absorption of functions of the former Case Management unit into the Post-hearing unit and the amalgamation of Scheduling and Expert Assessments, has enhanced consistency in file management and improved administrative efficiency;
  • Escalation strategies have been implemented to address post-hearing claim delays, with a formal framework in place to ensure that claims failing to progress as expected are addressed

Targeted approaches - Deceased Claimants/Estate Claims:

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 Chief Adjudicator 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 process to continue estate claims was established, to December 31, 2016, 226 estates have come forward to participate; of these, 156 withdrew or were dismissed, four have received a decision based on sworn testimony, and the remainder are in progress; there are also 67 claims in the IFR as non-participating estates. As discussed above, Canada has asked the Secretariat to put nearly 400 deceased claimant files on hold where Canada may have jurisdiction over the estate of the claimant; for 299 claims Canada is seeking family members or third party administrators to represent the claim, and in 97 claims, Canada is working to determine whether it does have jurisdiction over the estate.

Targeted Approaches - Incomplete File Resolution (IFR) Procedure:

As discussed above, the IFR procedure 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. Step 2 of the IFR required implementation by the Oversight Committee, which occurred January 20, 2015.

Step 1 of the IFR Procedure 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 2 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.

Since its inception, 403 claims which had been referred to the IFR have been returned to the normal hearing stream or other targeted approaches. At the end of the year, 192 dismissal decisions had been written, and a further 262 claims had a resolution direction pending release, awaiting resolution of Canada’s jurisdiction over estate claims. A further 319 claims were actively in progress with analysts and adjudicators in the IFR.

Under the IFR Procedure, 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 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 first claimant hearings of February 1, 2018. Given the many factors impacting our ability to resolve the remaining case load, and the potential impacts of ongoing court decisions, it may be necessary for the Oversight Committee to consider approving targeted exceptions to these deadlines for certain categories of cases in order to ensure fair access to reconsideration for all affected claimants.

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Focus on the Claimant: Engaging, Supporting and Reaching Out

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.

The importance of the IRS Resolution Health Support Program in the IAP:

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.

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. Additionally, both Health Canada staff and individual Resolution Health Support Workers have been of assistance to the Secretariat in locating claimants where contact has been lost, facilitating communication, and providing valuable information and perspectives regarding needs and claimant experiences at the community level. The Secretariat’s Executive Director and members of Senior Management maintain ongoing contact and hold regular meetings with Health Canada and Indigenous organizations regarding this important component of the IAP. In order to ensure continuity of vital supports for claimants, the Chief Adjudicator has also met on two occasions with the Deputy Minister of Health Canada.

Re-establishing Contact with Claimants - the Lost Claimant Protocol:

There exists 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; however, the introduction of more intensive efforts to reach out-of-contact or non-responsive claimants, and the successful implementation of the Lost Claimant Protocol.

As discussed above, the Lost Claimant Protocol provides the Secretariat with authority to take a series of progressive steps to find and reconnect claimants with whom contact has been lost 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.

http://www.iap-pei.ca/information/publication/pdf/pub/lcp-eng.pdfhttp://www.iap-pei.ca/information/publication/pdf/pub/lcp-eng.pdf

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. All materials can be viewed on the IAP website. In 2016, efforts have concentrated on individual case follow-up.

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 means that are not intrusive. For the Secretariat, this involves a series of telephone attempts and registered letters to ascertain whether the claimant can be located. Once a claimant is confirmed as ‘lost’, three progressive steps may be 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. This last step is utilized extremely sparingly and carefully, if at all.

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, 2016, there have been 763 referrals of claims to the Lost Claimant Protocol, and 478 have been located and returned to the regular file stream or a targeted approach. Through the dedicated efforts of Secretariat staff, only a small number of lost claimants remain still in active search, and efforts are expected to be concluded on these claims in the coming months. Though there remains the potential for further claimants to become ‘lost’, low numbers of active in-progress claims remaining provide a protective factor as remaining claims receive faster and more regular follow-up.

Supporting Unrepresented Claimants:

As the remaining inventory of pre-hearing claims falls, the relative proportion of unrepresented 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.

While every claimant has the right to choose to self-represent, there are also still claimants becoming unrepresented 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. A targeted approach, begun in 2015, was substantially completed this year, involving the assignment of specially trained adjudicators to hold hearings with claimants who are unrepresented involuntarily or who are struggling in certain aspects of the process. Also, the Chief Adjudicator had appointed a small group of adjudicators familiar with the extensive additional document production provided by Canada in compliance with a court ruling, to work with unrepresented claimants from St. Anne’s IRS.

Additionally, the Secretariat has implemented process improvements such as the combination of Early Track Assessment and Complex track Pre-hearing Conference calls to make them easier on claimants, and continues to provide each claim individual, intensive file follow-up. Unrepresented claimants whose cases are in the IFR Procedure have a dedicated support officer who can help them to navigate that process. As well, the Chief Adjudicator has provided instruction to adjudicators to ensure that claimants are supported during the final submissions process, to understand the submissions made by Canada and the importance of that process.

Outreach and Community Engagement:

In order to effectively support a claimant-centred process, the Secretariat is conducting ongoing outreach and community engagement activities, to build awareness of the IAP itself, to provide factual, accessible information on the process and claimants’ rights in the IAP, and to partner more effectively with community stakeholders for mutual benefit.

This year has seen a great deal accomplished in the engagement of stakeholders to promote awareness of the IAP at the community level. In concert with consultation activities for the IAP final report, the Secretariat has held IAP community engagement and information sessions in communities across the country and conducted partnership building meetings with survivors’ societies, healing and health centres, and other community organizations.

The Secretariat has also developed and distributed several information products to support claimants and their counsel in the process and to inform the general public regarding the process. In addition to fact sheets, media releases, and information notices, the IAP website has undergone significant updates, including the addition of new sections concerning the Records Disposition case and providing information about other court decisions affecting the IAP.

Post-Secondary Engagement:

The Secretariat has been working to build awareness among the general public by approaching Post-Secondary institutions which offer Indigenous Studies (or similar) courses, providing specially-designed reference materials about the IAP for use in courses and research, and offering in-person IAP information workshops at colleges and universities. These sessions will begin early in 2017 and as of December 31, 14 sessions had been scheduled.

Group IAP:

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.

Eight contribution agreements (for 11 groups) totaling $776,843 were signed for 2016-17 under the Group IAP program (this represents the total contribution funding available). Funded activities vary widely according to the needs and interests of each group, and often include traditional cultural practices such as pow-wows, healing circles and ceremonies. The Groups range from 3 members to 62 members, and this year were from Alberta, Saskatchewan, Manitoba, Nova Scotia and the Northwest Territories.

The 2017-18 Call for Proposals for new Group IAP projects was launched in September 2016 via the IAP website, and when submissions closed December 1, 2016, 27 proposals had been received. Initial screening has been completed, and assessment and selection of proposals is underway.

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Information Management

The Secretariat is in a unique position when considering its information management. As discussed elsewhere in this report, appeals of the courts’ direction with respect to the disposition of IAP records, and other continuing legal actions are impacting our information management procedures and planning.

Meanwhile, a government-wide initiative to update aging email systems (the Email Transition Initiative, or ETI) is also a concern for the Secretariat, as errors in the transition to newer software could potentially result in the loss of important information or even put the Secretariat at risk of violating court orders.

The Secretariat is taking decisive measures to ensure that its record holdings are properly organized, safeguarded and maintained. Over the course of 2016, the Secretariat has made huge strides in Information Management, with the successful launch of a Secretariat-specific electronic document archive and retrieval system (CIDMS) and dedicated time and resources to identifying and properly storing information of value held in email accounts in this system in preparation for the ETI, along with large-scale hard-copy file organization efforts and inventories of information held in various electronic repositories such as shared drives and databases.

Additionally, as part of its wind-down activities, the Secretariat is working with INAC’s Information Management and RIA sectors to examine various information storage systems in place and to begin planning the decommissioning process for these systems. This process is complex particularly due to questions of information ownership and control, and the necessity of ensuring that privileged Secretariat information is not inappropriately shared with Canada, and vice versa. Two systems no longer in active use, CCM Mercury and Office Tracker, are currently the focus of analysis.

Safeguarding Security of Personal and Confidential Information:

Security of personal and corporate information remains a key priority for the Secretariat. All staff and adjudicators are provided mandatory security training. As well, the Secretariat is working to ensure that security measures for the handling and transportation of information (such as encrypted USB drives) are accessible to those who need them and implemented appropriately.

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Winding Down: Preparing for the Completion of the IAP

As we look ahead to 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, and to ensure that the organization’s planning allows sufficient agility to respond effectively to changes in the work environment.

Completion Action Plan:

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 ongoing. Being an evergreen process, activity plans are revisited and revised on a regular basis.

Uncertainties regarding the disposition of IAP records, Article 12 and other court cases, our dependence on third parties (such as legal counsel and Canada) 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 implemented. 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.

Financial Resources:

The 2012 Budget provided funding for the IAP until 2015-16. Following combined efforts by INAC, the Secretariat and Health Canada, a Treasury Board Submission to secure funding for 2016-17 and 2017-18 has been approved. It is anticipated that, before the full completion of the IAP mandate, further Treasury Board submissions will be required.

The 2012 Budget provided funding for the IAP until 2015-16. Following combined efforts by INAC, the Secretariat and Health Canada, a Treasury Board Submission to secure funding for 2016-17 and 2017-18 has been approved. It is anticipated that, before the full completion of the IAP mandate, further Treasury Board submissions will be required.

The Secretariat’s Integrated Human Resources Plan for 2016-2019 and its Retention Strategy place 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 finds itself in the complex position of continuing to staff some positions while at the same time planning for the gradual reduction of positions as we approach the completion of the IAP. Reduction planning has been significantly impacted by the dramatic increase in legal activity and other environmental pressures. The first significant round of position reductions was implemented in the spring of 2016, eliminating 50 positions in total while making every effort to minimize impacts to staff, managing strategic vacancies so that 26 of the positions were vacant at the time of reductions, and providing support to affected staff. In order to ensure that sufficient resources will be available to meet needs, further reductions which had been planned for the autumn were delayed. Meanwhile, we are seeing the impacts of the approach of wind-down as staff begin to consider new career opportunities and depart in advance of the planned closures of their positions, leading to unplanned vacancies.

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 groups and 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.

During the coming years, 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.

Staff Training and Future Employment Resource Development:

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.

Wellness and Employee Morale:

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 team organizes regular activities throughout the year, including cultural celebrations, teambuilding activities, workshops on topics such as change management, resilience, stress, work-life balance, and maintaining a healthy workplace. Additionally, the Secretariat is devoting particular attention to ensuring staff recognition at multiple levels, including long-service awards, nominations for instant (management-level) and departmental awards, and informal and interpersonal recognition.

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 the Secretariat had made progress in several areas that had been identified as issues in the previous 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. In complement to its PSES Action Plan, the Secretariat has developed and implemented a Values and Ethics Action Plan to ensure values and ethics are integrated into the organizational culture.

IAP Report on the Achievement of Objectives (Final Report):

In the spring of 2013, the Oversight Committee tasked the Secretariat with preparing a report which examines the extent to which the objectives of the IAP have been met.

The Secretariat continues this multi-year project, with the objective of submitting the first draft of 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.

Throughout 2016, Secretariat staff conducted consultations, interviews and focus groups representing the parties to the agreement and other stakeholders. Staff travelled to multiple locations across the country to meet with claimants, community groups, Oversight Committee members, RHSWs, other stakeholders and individuals influential to the history of the process to gather perspectives on how the IAP has achieved its objectives. These sessions have been immensely valuable for the report, and also personally impactful for the individuals involved, and overall the sessions have been well-received by participants. While a few additional sessions and interviews will be held in 2017, the majority of the data collection phase is now complete, and focus is turning to the analysis of information and composition of the draft.

While it is too early for a comprehensive analysis of the interviews and focus groups, some emerging themes include:

  • Consistency in messaging, information, and experiences;
  • Importance of health support throughout the process;
  • Challenges with the Model;
  • Governance structure, administration and independence;
  • Value of the IAP hearing;
  • Outreach and awareness; and,
  • Claimant needs.

In addition to the Final Report for the Oversight Committee, the Secretariat is also beginning work on a comprehensive Administrative report to examine the challenges and lessons learned relating to corporate aspects of the Secretariat.

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In Conclusion

The past year has been one of immense challenge, and considerable success. As we look ahead to the coming years, we recognize that many of the factors impacting our ability to meet the IAP mandate and bring the process to its conclusion are outside of our control, but not necessarily outside of our influence. We will continue to work hard with all of the stakeholders to the IAP to ensure that the IAP retains its core identity as a claimant-centred process while meeting the challenges and demands of bringing the process to its close in an impartial, transparent and responsible fashion.

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Footnotes

1. Apart from: (a) the ability to seek leave of the Chief Adjudicator to access the courts, in specified circumstances defined by the IAP, which has occurred only three times since implementation of the IAP.; (b) the potential right for those who have not previously brought claims under the pilot projects, litigation, ADR or the IAP, to bring legal action in the courts, under Article 4.06(i) of the Indian Residential School Settlement Agreement.
2. Although a total of 1,859 claims had not been heard as of March 31, 1,592 were considered likely to be resolved through means other than hearing, such as deceased claimants without active estate representation, those undergoing negotiated settlement or Jurisdictional review, claims in the Incomplete File Resolution process, and lost claimants.
3. A claim is considered 'resolved' upon an adjudicator’s decision or dismissal, the claim is deemed ineligible (not admitted or not accepted), a jurisdictional review is finalized, a settlement is negotiated, or the claim is withdrawn.
4 These documents are available in their entirety on the IAP website at http://www.iap-pei.ca/information/pub-eng.php
5. A small number of claimants have been located and subsequently lost contact once again, leading to a second referral, and are thus represented more than once in this number.
6. Note re: past year data: In the past two years, the Secretariat has devoted significant effort to in-depth file review and improvements, both to data integrity and reporting methods and consistency of definitions. Additionally, events within a file’s lifecycle can cause a change to the year and category in which it is counted (e.g. non-admitted claims for which a claimant submits further information and are subsequently admitted; a withdrawn claim (in certain circumstances) is reactivated and receives another form of resolution), Therefore, past years’ numbers in this section may reflect minor differences from previous reports.
7. A claim is considered processed if a hearing has been held or the parties have entered into a Negotiated Settlement.
8. Includes adjudicator dismissals.
9. Adjudicators are required to approve legal fees in all negotiated settlements. Claimants may also request an adjudicator’s review of their Negotiated settlement.
10. Includes NSPs with and without hearing.

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