Publications | Annual Reports

I am pleased to release my Annual Report for 2018, 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 continue to arise including 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-centered, yet fair to all concerned. As the Chief Adjudicator, I am very pleased by the results we have achieved this year.

Performance

Notice Program and Records Disposition

Non-Claim Records

While the Supreme Court of Canada decisions and subsequent Direction of the Eastern Administrative Judge have definitively dealt with IAP Claim records, they did not deal with the matter of disposition of non-claim records, including policy and oversight decisions, statistical/database data, and many other forms of other documents. Near the end of 2018, the Secretariat retained the services of a respected archivist to advise on documents that should be donated to the NCTR or otherwise handled. This will be of great assistance to me in making recommendations to the IAP Oversight Committee in this regard. Ultimately, if there is any doubt as to my ability to make decisions in this matter, the issues in question will be brought to the Courts as part of the Request for Direction to establish the dates/terms of sunset of the Secretariat and conclusion of the Chief Adjudicator’s mandate.

Blott DNQ Files

On June 29, 2018, Justice Brown approved an order allowing a truncated process for processing Blott DNQ claims that met the Submission Deadline of September 14, 2018 set by Justice Brown and the admissions criteria set out in the IAP and that had not been ruled on previously by Justice Brown. Of the 147 DNQ files and 12 files that were omitted from the previous order, the Admissions Unit of the Secretariat received a total of 56 applications. Of these, 44 were admitted by September 30, 2018 and two others were added following non-admit appeals to the Chief Adjudicator. The remaining files are deemed barred from the IAP.

Apart from eight of these files, with the support of Canada’s Representatives and appointed Claimant Counsel, all of the admitted claims went to hearing by December 2018 a remarkable accomplishment. Eighteen of these claims were concluded by December 31, 2018, resulting in 15 awards and two Negotiated Settlements. I wish to acknowledge the extraordinary efforts of our senior staff, staff in the Admissions, Scheduling and Hearings Management Units, and our adjudicators, for their dedicated efforts, despite greatly diminished staff numbers, that resulted in these claims being admitted and scheduled for hearing in record time.

Article 12 Applications

At the time of my last annual report, there was no clarity on the status of two facilities that were the subject of Article 12 applications/appeals, to be added as listed schools.

Timber Bay, Saskatchewan

The decision denying the application to add this facility had been denied by the Saskatchewan Court of Appeal was the subject of an application for leave to appeal to the Supreme Court of Canada. During 2018, the Supreme Court of Canada dismissed the leave application.

Kivalliq Hall

The decision of the Nunavut Court of Appeal, which upheld the Article 12 decision of the Nunavut Supervising Judge adding Kivalliq Hall as a listed school, was released on July 20, 2018. As of December 31, 2018, no order had been issued implementing this decision or establishing an application deadline. It is anticipated that those issues will be before the Supervising Courts to decide by the end of April 2019. It is not yet known how many class members will be added, or of those class members, how many will file IAP claims or what application deadline will be approved by the courts. While planning is underway to deal with these new claims, no predictions of the timetable for concluding them can be provided at this time with any confidence.

In all the circumstances, while I remain open to any proposals Canada may have to expedite the handling of such claims, the prospects of us completing our planned timetable of concluding all adjudication work by December 2020 are becoming increasingly unlikely.

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

Estate Pre-hearing Teleconferences (EPHTs)

I provided guidance to adjudicators that by September 30, 2018, adjudicators were to provide rulings on whether estate claims could proceed to hearings. This deadline was met, with the exception of Blott DNQ claims that were admitted by that time.

Cases with no Estate Administrators Appointed

A challenge for the resolution of claims for deceased claimants has been situations in which the Government of Canada has held jurisdiction over the estates of some such claimants, requiring the appointment of estate administrators. As of December 31, 2017, there were 132 cases in which Canada had jurisdiction, in which estate administrators had not yet been appointed. After years of challenges for Canada in such matters, including appointment of third party legal counsel where appropriate, as of December 31, 2018, only 37 such claims remained.

However, as of December 31, 2018 there were 21 claims in which awards had been made or likely would be made to estates, but no estate administrators had been appointed, where Canada did not have jurisdiction. A deadline of January 17, 2019 was established for such estates to appoint administrators, but many estates did not meet the deadline. Extensions were sought and granted in 16 cases, providing that the estate supplied confirmation of applications for letters of administration/probate within prescribed time-frames.

Student on Student Claims Dismissed Due to Absence of Admissions of Staff Knowledge

In September 2017, Canada submitted a Request for Direction (RFD) on procedural fairness which was unlike most RFDs, in that it did not relate to one specific IAP file. Canada centered its RFD on seven cases in which it argued the Chief Adjudicator and his designates utilized procedural fairness as grounds for review or re-review. Most of these cases involved progressive disclosure or were related to student-on-student allegations. Canada did not seek the setting aside of the decisions for these seven cases listed in its RFD, but rather a freestanding direction from the court “in the form of an interpretative guidance regarding the ambit of the Chief Adjudicator’s and adjudicator’s jurisdiction on review and re-review” to:

• Import procedural fairness as an implied term of the IAP model;
• Consider procedural fairness as a ground for review and re-review; and,
• Grant a remedy on the basis of procedural fairness.

Canada maintained that the IAP Model is a complete code and procedural fairness is not referenced at all within the model. The British Columbia Supreme Court agreed with Canada’s position in its decision concluding:

• The IAP is a complete code. The appropriate phrase is “IAP Model fairness”- which is what the parties bargained for and the courts approved;
• The administrative or public law term of procedural fairness is not once referred to in the text of the IAP Model.
• The IAP does contemplate “progressive disclosure” by requiring Canada to make admissions of staff knowledge/failure to take reasonable steps, as the IAP unfolds. Newly discovered information does not justify the re-opening of a decided IAP, whether the review is ongoing or closed; and,
• Only the supervisory courts of the Indian Residential Schools Settlement Agreement possess the jurisdiction to re-open an IAP claim.

Justice Brown’s ruling also impacted on the Student-on-Student (SOS) RFD that the National Administrative Committee filed in January 2018. Justice’s Brown’s decision makes it clear that SOS admissions are made on the basis of decided IAP claims and that a claimant who seeks a determination at an earlier stage accepts that a determination will be made notwithstanding the fact that further evidence may later become available.

The Assembly of First Nations and Independent Counsel brought appeals from Justice Brown’s Direction to the British Columbia Court of Appeal. At the time of writing this Report, the decision of the British Columbia Court of Appeal remains under reserve.

Notwithstanding Justice Brown’s Decision, on March 12, 2018, Canada announced that it would review student-on-student claims dismissed for lack of proof of staff knowledge, where post-decision admissions by Canada of staff knowledge might have assisted the claimant had they been available at the time of the decision. Canada announced that where it determined that cases were appropriate for settlement on this basis, such claims would be settled outside of the IAP, in a manner similar to what Canada adopted in the “Administrative Split” cases. Based on data shared by Canada, 19 cases have been settled for a total of $904K. Currently, offers have been made to another 25 claimants. The total number of cases identified by Canada continues to grow.

Student-on-Student Cases on Hold

By the end of 2017, 260 claims remained in the SOS project, 63 of these on hold pending potential future admissions of staff knowledge by Canada. By December 31, 2018, 74 cases remained in the SOS project, only 11 of which were on hold pending potential admissions.

The Changing Environment: Challenges and Risks

Many of the challenges and risks to completion that existed at the time of my 2017 Annual Report have been concluded, in particular the Timber Bay Article 12 application and the Notice Program/Consent to archiving Request for Direction. However, at the end of 2018, unknowns remain, such as the timetable for Kivalliq Hall and the potential repercussions of some of the cases before the court, briefly summarized below.

Requests for Direction (RFDs)

During 2018 appeals had been heard but not yet decided in theJ.W. v. Canada (Attorney General) case before the Supreme Court of Canada (dealing with the appropriate standard of judicial recourse in a case involving what is required to prove compensable sexual touching, Sexual Assault Level 1.4), the Scout Appeal before the British Columbia Court of Appeal (involving whether the IAP application deadline was correctly established as September 19, 2012, or ought to have been September 20, 2012), and the Procedural Fairness Appeal pending before the British Columbia Court of Appeal. The decision in any of these cases may have implications for the completion of the IAP.

Administrative Split Cases

This issue was discussed in detail in my 2017 annual report. As of December 31, 2017, Canada advised that it had resolved 107 such claims, with settlements totaling approximately $8.23 million in compensation. Also as of December 31, 2017, 123 affected claimants have received an offer from Canada to resolve their claim. Canada advises that by December 31, 2018, it had resolved a cumulative total of 165 such claims, and that Canada will continue to pursue negotiated settlements outside of the IAP until all affected claims are resolved.

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. Many adjudicators have begun the transition to new work opportunities.

Over the past year, 11 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 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 four Deputy Chief Adjudicators (DCAs) and 44 adjudicators, including some who have advised of their intention to depart, and are concluding their existing dockets; this is down from approximately 100 adjudicators and nine DCAs when the IAP was at its peak and 52 adjudicators as of December 31, 2017. However, given that, during the peak of the Alternative Dispute Resolution process functioned with approximately 40 adjudicators dealing with over 1,000 cases per year, at this point in time it is felt that there should remain sufficient adjudicative capacity to address foreseeable eventualities.

Deputy Chief Adjudicators (DCAs)

Near the end of 2018, DCA Lisa Weber concluded her work in the IAP in order to go into private practice in Edmonton. DCA Weber began as an IAP adjudicator in 2011 and was appointed as a DCA in September 2014. Her important contributions to the success of the IAP will be greatly missed by her many friends and colleagues. I wish her the very best in private practice.

The creative and dedicated work and support of the DCAs has been indispensable to the success of the IAP. I wish to acknowledge their exceptional contributions.

Completion of the IAP

In August 2017 I provided an Updated Completion Strategy to that provided in 2013, examining the various risks to completion and their potential impacts in greater detail than discussed here. This update followed 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.

The Oversight Committee initially determined that February 1, 2018 was the last practical date to hold first Claimant hearings and set August 1, 2017 as the Reconsideration Deadline. Oversight Committee later extended the Reconsideration Deadline to June 1, 2018. The Reconsideration Deadline was the last date a file could re-enter the regular stream for a hearing while the Secretariat still had the capacity to resolve the claim.

With June 1, 2018 as the Reconsideration Deadline, and the last practical date to hold first Claimant hearings having been established as December 1, 2018, a further update was provided in July 2018. This most recent update to the IAP Completion Strategy calls for the conclusion of first hearings by December 1, 2018, which was met, apart from some of the Blott DNQ hearings. It also called for the conclusion of all adjudication work by December 1, 2020 and the administrative wind-up of the Secretariat by March 31, 2021. These latter deadlines are now in doubt given the addition of Kivalliq Hall.

Following consultation with the IAP Oversight Committee, a Request for Direction will be made in 2020 to the Supervising Courts, with a proposal for the hand-off of records administration to a contracted records management firm following the sunset of the Secretariat on a date or dates to be determined by the Court. The Eastern Administrative judge will rule on the date(s) of the conclusion of the mandate of the Secretariat and the Chief Adjudicator, among other issues, following this RFD.

Initially, it was expected that the RFD would be brought in the spring of 2019. However, given the developments with Kivalliq Hall noted above, the present plan is to bring the RFD within two months after the admission deadline to be established regarding Kivalliq Hall claims. By then, it is hoped, more information will be available regarding not only of the number of claims, but also the nature and complexity of such claims.

While much remains to be done, it is important to acknowledge and celebrate successes. At the end of 2018, apart from Kivalliq Hall, we had resolved an astonishing 99.7% of all claims.

We are fortunate to have benefited from the leadership of the IAP Oversight Committee, including Chair Mayo Moran.

In Memoriam

It is my sad duty to report that Les Carpenter, Inuit representative on the IAP Oversight Committee, northern broadcaster and CEO of CKLB Radio in Yellowknife, died on July 3, 2018 at age 61. Les Carpenter was the first ever chair of the Inuvialuit Regional Corporation and sat on a number of boards and committees representing the Inuvialuit people. His wise counsel and the unique Northern Indigenous perspective that he brought to the deliberations of Oversight Committee will be sorely missed as the IAP enters its final stages. I extend condolences on behalf of all adjudicators to Les’s family and friends. For more about the contributions of Les Carpenter, please see the link below:

https://www.cbc.ca/news/canada/north/les-carpenter-dies-1.47328311

Leadership within the Secretariat

On the Secretariat side, Dr. Akivah Starkman concluded his term as Interim Executive Director, which began in September 2017, on May 15, 2018. The Secretariat and I benefited greatly from Dr. Starkman’s expertise and leadership. I am grateful that he was willing to interrupt his retirement long enough to assist us in carrying out our respective mandates during a period of transition.

I am delighted to report that Roger Tetreault was appointed as Executive Director of the Secretariat, effective May 16, 2018. Mr. Tetreault was the Secretariat’s Director of Operations between 2010 and the date of his appointment as Executive Director. He also worked at INAC, Health Canada and the CRA. A resident of Regina, Mr. Tetreault is a CPA who also holds an MBA from the University of Regina. His work on the front lines of our operations has equipped him well to manage the unique operational challenges associated with winding down a complex tribunal such as ours. He will continue to work in Regina. We are fortunate to have such a depth of talent among our staff. I look forward to continuing to work with Mr. Tetreault in his new role and have every confidence in his ability to capably lead the Secretariat to the finish line.

Acknowledgement of Secretariat staff and adjudicator contributions

I would be remiss if I did not acknowledge the exceptional dedication and commitment of Secretariat staff, who, despite the uncertainties of their own work situations, are determined to ensure that the work of the Secretariat is concluded in a good way.

Our adjudication team, while greatly 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.

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I am grateful for the contributions of so many people to the success of the IAP.

All of which is respectfully submitted,

Daniel Shapiro, Q.C.
Chief Adjudicator

Applications Resolved and Processed

Since implementation of the IAP to December 31, 2018, 38,257 applications have been received by the Secretariat, of which 33,854 have been admitted. In 2018, at the direction of the British Columbia Supreme Court, 159 applications from former Blott & Co clients were deemed submitted to the IAP; of these, 56 physical applications were received, and 46 subsequently admitted. The deadline for new applications has passed, and with the exception of claims proceeding from Kivalliq Hall (see “Resolving the Remaining Caseload”, below), no further applications are expected to be added to the process.

As illustrated in Table 1 and Figure 1, 661 applications were resolved in 2018, through an adjudicator’s decision, a negotiated settlement, a claimant’s withdrawal or ineligibility. In total, 38,129 claims had been resolved by December 31, 2018, approximately 99.7% of all applications received.

Table 1: Applications Received and Resolved by Calendar Year (see also Fig. 1)¹⁰

Calendar Year	2007	2008	2009	2010	2011	2012	2013	2014	2015	2016	2017	2018	Total
Applications received	3,849	5,418	4,750	5,148	5,494	12,787	372	132	48	98	2	159	38,257
Applications resolved	404	1,503	2,895	4,349	4,425	5,342	6,255	5,094	3,643	2,435	1,046	738	38,129
Adjudicator decisions	322	1,081	2,086	3,210	3,376	3,932	3,942	3,739	2,645	1,492	509	316	26,650
Dismissals11	0	0	0	1	12	20	53	75	54	327	393	244	1,179
Negotiated settlements	0	40	278	626	572	742	727	622	510	196	48	47	4,408
Ineligible/ withdrawn	82	382	531	512	465	648	1,533	658	434	420	96	131	5,892

Figure 1: Claim resolutions by Calendar Year¹²

	Decisions	Dismissals	NSP	Ineligible or Withdrawn
2007	322	0	0	82
2008	1081	0	40	382
2009	2086	0	278	531
2010	3210	1	626	512
2011	3376	12	572	465
2012	3932	20	742	648
2013	3942	53	727	1533
2014	3739	75	622	658
2015	2645	54	510	434
2016	1492	327	196	420
2017	509	393	48	96
2018	316	244	47	131

A total of 112 IAP claims were processed¹³ in 2018 (see Figure 2, below), for a total of 30,950 since the beginning of the IAP. It should be noted the definition of ‘processed’ does not include claims withdrawn, ineligible, or dismissed without a hearing.

Figure 2: Files Processed per Calendar Year

	Processed
2007	257
2008	1517
2009	3264
2010	3701
2011	4281
2012	4878
2013	4791
2014	4690
2015	2718
2016	671
2017	134
2018	112

Negotiated Settlement Process (NSP):

It should also be noted that, in the past years, Canada’s representatives have expressed willingness to negotiate settlements with individual claimants impacted by particular legal or procedural questions such as the Administrative Split question discussed in past reports, and in certain cases involving abuse by fellow students where, following the release of a decision, relevant information has arisen which may have impacted that decision. Such negotiations are considered external to the IAP, are not reviewed by adjudicators, and are not counted in these statistics.

Statistical data regarding Negotiated Settlements is provided by Canada.

Figure 3: Negotiated Settlements by Calendar Year

Year	Without hearing	With hearing
2007	0	0
2008	27	13
2009	208	70
2010	573	53
2011	562	10
2012	721	21
2013	718	9
2014	615	7
2015	491	19
2016	159	37
2017	17	31
2018	22	25

The Changing Caseload:

We have seen significant changes in 2018 in the size and composition of the in-progress caseload, which, by the end of the year, was less than 1/4 its size in January, as shown in Figure 4, below.

Between July and September 2018, a total of 159 claims from former clients of Blott and Company were added to the process by the order of the British Columbia Superior Court. Although all 159 were deemed submitted by the order, only 56 claimants submitted their actual applications to the Secretariat by the court-imposed deadline of September 14; 46 of these were ultimately admitted. Following the passage of the deadline, the remaining 103 claims were deemed non-admitted.

The number of admitted, pre-hearing claims has been reduced to near zero. Even with the small influx of new, former Blott & Co claims, the Secretariat, with the cooperation of the parties, was able to schedule all expected remaining hearings by December 31, though two hearings were later rescheduled into the new year due to availability issues. An additional seven claims are expected to be resolved without a hearing.

Meanwhile, the post-hearing caseload has continued to decline steadily. This stage is now the most time-consuming for the remaining claims, encompassing most mandatory document production, expert assessments where required, other evidence production, final submissions calls, writing and release of decisions and many other activities. The individual complexities of the remaining claims also contribute to the time required, as some claims must await the resolution of other matters before they may proceed. For example, as of December 31, there remained 11 cases on hold pending potential future admissions by Canada of staff knowledge of student-on-student abuse, and there was only one re-review claim on hold pending a request for direction before the Courts.

Figure 4: Pre- vs Post-hearing In-Progress claims, 2018

Month	Post-Hearing In Progress	Pre-Hearing in Progress
January	304	251
February	286	230
March	264	174
April	242	137
May	208	124
June	188	107
July	173	256
August	156	246
September	144	193
October	127	77
November	136	27
December	121	9

Figure 5: Pre-hearing Caseload, 2018

Month	Pre-Admission	Admitted, resolving without hearing	Admitted, pre-hearing
January	0	237	14
February	0	214	16
March	0	159	15
April	0	124	13
May	0	112	12
June	0	100	7
July	157	94	5
August	156	80	10
September	111	43	39
October	2	34	41
November	0	13	14
December	0	7	2

In previous years, claims for individuals who, by choice or through inability to retain legal counsel, have represented themselves in the process have generally resolved much more slowly than represented claims, due to multiple factors. However, more intensive case management of such claims has made a significant impact, and nearly all such claimants have now received claim resolutions and/or have succeeded in retaining counsel, as shown in Figure 6, below. The overall percentage of self-represented claimants among the in-progress caseload, which had at its height in 2017 reached over 40%, is now less than 4%, as shown in Figure 7. The Secretariat continues to provide individualized, non-legal support to remaining unrepresented claimants to assist them in obtaining required documentation and in navigating the steps of the process, and also provides information to assist such claimants in obtaining counsel where desired.

Figure 6: In-Progress (total pre- and post-hearing) caseload by representation status

Month	Unrepresented	Represented
January	167	388
February	153	363
March	125	313
April	97	282
May	77	255
June	73	222
July	191	238
August	49	353
September	32	305
October	11	193
November	7	156
December	5	125

Figure 7: Percentage of Unrepresented claims in the in-progress (unresolved) caseload

Month	Unresolved %
January	30
February	30
March	29
April	26
May	23
June	25
July	45
August	12
September	9
October	5
November	4
December	4

The past year’s report discussed delays to the resolution of claims for deceased claimants in cases where administration of a claimant’s estate fell under CIRNAC’s jurisdiction, creating a conflict of interest; happily, this matter has now been addressed and alternate estate administrators have been identified for these claims, enabling them to proceed; this is no longer presenting additional delays.

Figure 8: File Resolution by type - 2018¹⁷

Month	Ineligible	NSP	Dismissals	Withdrawls	Decision > $0	Decision $0
January	0	22	42	0	20	17
February	0	4	37	4	25	31
March	0	4	46	4	23	22
April	0	3	46	5	30	16
May	0	8	17	2	46	27
June	0	11	22	5	41	22
July	0	4	17	8	50	21
August	0	4	37	4	25	31
September	15	0	62	2	9	12
October	74	0	9	1	9	8
November	0	2	46	2	32	17
December	0	7	10	3	50	30

At the end of December, 2018, the Secretariat had achieved what in prior years sometimes felt almost impossibly distant – all received claims which could be scheduled had been, and all but two first claimant hearings had been held. Additionally, with the passage of the Incomplete File Resolution (IFR) reconsideration deadline in June 2018, the deadline for applications for affected former Blott & Co claimants in September, and the Chief Adjudicator’s direction to adjudicators to complete Estate Pre-hearing Teleconferences (EPHTs) by September 30, 2018, these caseloads have also been essentially completed. The resolution of the remaining caseload for the most part consists of the conclusion of normal post-hearing work, including mandatory document collection, final submissions conferences, the writing and release of decisions, expert assessments, and similar, with a handful of claims undergoing negotiated settlements or awaiting estate documentation, student-on-student admissions, or results of specific court actions.

There are currently questions remaining before the Courts impacting the resolution of the caseload.

In July 2018, the Nunavut Court of Appeal upheld the December 2016 decision of the Nunavut Court of Justice to admit Kivalliq Hall to the list of eligible schools in the Settlement Agreement. As of the time of writing of this report, negotiations between the parties are still ongoing with respect to recommended implementation orders; Court hearing and release of implementation orders are hoped for in April. These orders will determine the timelines and other details as to how affected individuals will be notified and submit their claims. Numerical estimates of potential claimants vary; the multi-use nature of the Kivalliq Hall facility makes such an estimate a complex question. The highest estimates currently suggested are not greater than about 100; in all likelihood, however, it will probably be much less.

Once received, the resolution of Kivalliq Hall claims will proceed in as timely a manner as possible while ensuring that these claimants receive the same consideration and fair and dignified treatment as those who came before them in the process. Geographic concerns, such as weather impacts on travel in the North, may influence how hearings are scheduled. There will likely be an increased need for translation and interpretation services. As we await the direction of the Court to begin implementation of this caseload, the Secretariat is working with the Oversight Committee and stakeholders in planning ahead to the extent possible, to ensure resources are available to process these claims, and learning from past experiences to provide this group of claimants with the best service possible.

Additionally, two court actions currently undecided bear the potential to impact the caseload, either through the potential reopening of resolved claims or the potential admission of additional claims. In one case, awaiting decision by the Supreme Court of Canada, there is the potential that decided claims which included a specific category and type of sexual abuse allegation (SL 1.4 as defined in the Settlement Agreement) may require re-examination in some form. In another, submitted to the British Columbia Court of Appeal, the date of the original IAP application deadline is under dispute, and it is possible that the resolution of this question could impact other claims previously not accepted due to having missed the deadline.

One of the most significant events of 2018 was the receipt and implementation of Court direction regarding how the Supreme Court of Canada’s October 2017 decision regarding IAP records disposition was to be carried out.

Since the release of Justice Perell’s direction, the Secretariat has been working at full speed to prepare materials for the launch of the Notice Program, to gather, sort, and prepare impacted records, and to begin the process of destroying claim-related records which are not designated for retention as directed by the Court.

The Notice Program to inform Claimants of their right to control the disposition of their claim records has been given the title, “My Records, My Choice”, emphasizing the Supreme Court’s direction that the choice whether or not to make their stories available to researchers or to the public belongs to the claimant, and the claimant alone.

Significant work has been completed to prepare for the Notice Program. Filming of an explanatory video has been completed in English, French, and Inuktitut, with subtitles and transcripts available in three additional indigenous languages. Printed products, including information cards, forms, posters, pamphlets and other items, have been designed and prepared for distribution to approximately 1,400 organizations, including Indigenous and other organizations hosting Resolution Health Support Workers (RHSWs), First Nations and Tribal Councils, Friendship Centres, Correctional Facilities, and Inuit and Métis communities. The multi-media plan has been prepared for launch, including recording and distribution of television advertisements and radio spots, and notices to national newspapers and indigenous publications.

Online products (including electronic versions of the materials described above) have also been the subject of a great deal of development and preparation work, including social media accounts and the design of the Notice Program’s official websites in English and French: My Records, My Choice and Mes documents, Mon choix.

One of the most important components of the Notice Program involves the provision of in-person assistance and support to claimants within communities, helping individuals to know their rights under the Court’s direction and to obtain, complete and submit the relevant forms according to their choice. The Court has entrusted responsibility for this role to Resolution Health Support Workers (see below), individuals contracted through Indigenous governments and non-profit organizations and funded by Canada to provide individual support services to claimants. The AFN, NCTR, two Inuit organizations and Crawford will also provide information lines and be available for claimants to contact with questions regarding their records. Training sessions for RHSWs, the AFN and Crawford were completed in autumn 2018, and training for Inuit organizations took place in the new year.

By the end of December, document consolidation and sorting had been completed for more than 17,779 claims, and the retention and destruction process had been completed for 10,400 electronic and 2,580 physical records.

The Secretariat has also engaged the services of a professional archivist to make recommendations regarding the disposition of other types of records, not covered by the current Court direction, at the end of the IAP. These include financial and other administrative records as well as reports and other substantive documents created over the life of the Secretariat. The resulting proposal will be presented to the Oversight Committee for their review and ultimately direction will be sought from the Court.

The framers of the Settlement Agreement created the IAP as a claimant-centered 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 the Indian Residential Schools Resolution Health Support Program, which is administered by Indigenous Services Canada (formerly Health Canada). This program provides mental health and emotional support services to eligible former residential school students and their families throughout all phases of the Settlement Agreement. The support program is delivered through contracts and agreements with local Indigenous organizations except in British Columbia, where the services are provided by the First Nations Health Authority.

Resolution Health Support Workers are an important part of the IAP, and valued partners of the Secretariat in facilitating communication and information exchange between communities and claimants and the Secretariat. In addition to the invaluable personal support they provide to claimants and their families throughout the claim resolution process, these individuals will also play a crucial role in the success of the Records Disposition Notice Program (see above). The Secretariat also looks forward to working with RHSWs and their parent organizations in supporting individuals entering the agreement with the implementation of the Kivalliq Hall decision (see above).

Supporting Unrepresented and Self-represented Claimants:

All claimants have the right to choose to represent their own claim rather than retaining a lawyer. There are also claimants who have become unrepresented when their lawyer has withdrawn from their claim. As discussed briefly above, unrepresented claimants face additional challenges in resolving their claims in the IAP, and as a result the Secretariat devotes specific resources to assist such claimants. Currently, the few remaining unrepresented claims are all Estate claims. However, it remains as important as ever to ensure the estate representatives, and any other claimants who may become unrepresented before their claim is resolved, continue to receive necessary, individualized support to resolve their claims. The Secretariat’s claimant support staff work directly with these individuals to provide information, reduce barriers and facilitate the administrative requirements for claims to proceed; however, they cannot provide legal advice or take the place of qualified counsel. The Secretariat also makes assistance available to claimants and estates who are seeking legal counsel.

It is as yet unknown and very difficult to predict how many individuals applying from Kivalliq Hall or potentially impacted by other current court cases may choose to proceed self-represented. The Secretariat is planning ahead to ensure that appropriate supports will be available to these claimants.

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. 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, group counselling, and learning opportunities such as workshops.

Following the completion of a Call for Proposals in autumn 2017, 12 groups were selected to receive funding for the 2018-19 year; however one group will no longer be participating. To the remaining 11 groups, a total of $700,000 will be provided to fund activities for approximately 200 IAP claimants. The agreements are dispersed across Canada in Saskatchewan, Alberta, Ontario, the Northwest Territories, Manitoba, and Nova Scotia.

Group IAP funding will conclude with the end of the 2019-20 fiscal year. The final Call for Proposals launched in August 2018 and concluded in November, to be assessed in early 2019.

Details regarding the availability of Group IAP for former students of Kivalliq Hall will be addressed pending the receipt of the Court Order; however, it is the Secretariat’s intention, if possible, to ensure such claimants have access to Group IAP funding if desired.

We continue to see high levels of legal activity with respect to Requests for Directions brought to the Courts by various parties to the Agreement; however, as we get closer to the completion of the process, we are also seeing many such cases decided and important questions answered.

Requests for Direction are the primary vehicle through which the parties may request the Court to provide decisions regarding the interpretation and implementation of the agreement, and they are an important part of ensuring the just and lasting resolution of the IAP by answering very important questions of policy and sometimes addressing matters specific to individual claims.

At the time the previous year’s report was written, there were 21 Requests for Direction in progress at various stages before the courts; as of the end of December 2018, this number has now reduced to 13, of which the majority concern specific individual claims. Many have received decisions which are now under appeal. In the majority of cases, the Chief Adjudicator does not participate in RFDs for individual claims, and where he does, in most cases his role is as a “friend of the court”, providing factual information to support the decision-making process.

As discussed briefly above, there are matters before the courts with the potential to impact larger groups of claims and/or to impact the currently-anticipated timelines for the completion of the IAP.

• The implementation orders regarding Kivalliq Hall are expected to result in the admission of additional applications, the processing of which may require work past the currently anticipated closure of the Secretariat in March 2021.
• A case is currently awaiting decision from the Supreme Court of Canada which could impact claims involving allegations of sexual assault of the “SL 1.4” type; such claims could potentially require reconsideration or reopening.
• A case is currently pending before the British Columbia Court of Appeal disputing the September 19, 2012 deadline date, arguing that it should have been calculated as September 20, 2012; this could potentially result in the review and potential admission of additional applications.
• A case is pending decision by the British Columbia Court of Appeal regarding the question of “procedural fairness” and its relevance to the IAP.

As discussed in the following section, a further request to the Court for direction will be required in future in order to conclude the IAP.

The Chief Adjudicator’s Completion Strategy and related planning

The Chief Adjudicator first developed and released a comprehensive Completion Strategy in 2014. This strategy outlined anticipated timelines for the completion of the process and discussed the various risks to that timeline. The Strategy was subsequently updated in 2017 and again in 2018 as further information has become available and changes in the operational environment have required adjustments to projections.

Although the Completion Strategy utilizes the end of March, 2021 as an anticipated closure date, the actual dates of IAP Sunset and of the Secretariat’s closure have not yet been confirmed. The Oversight Committee is currently discussing options presented to it by the Secretariat regarding both the sunset date and closure date of the Secretariat. However, the Oversight Committee’s final recommendations to the courts will likely follow the end of the Admissions period for Kivalliq Hall, when the Secretariat will have a better understanding of its remaining caseload.

When the Secretariat closes and the IAP comes to an end, we will work to ensure that any residual remaining work is handled in a way that supports appropriate independence and neutrality, maintaining a claimant-centered and respectful process, and maintaining consistency in practices. In the coming years important questions will need to be answered, by the Oversight Committee and the Courts, to determine how such work will be handled and by whom.

Administrative Planning for Wind-down and Completion:

In parallel and complement to the Chief Adjudicator’s Completion Strategy and related planning, the Secretariat is implementing a gradual, controlled wind-down of activities in accordance with its internal Completion Action Plan.

This plan, comprehensively redesigned and updated in 2018, outlines the various administrative and operational milestones which must be met in order to achieve an orderly, efficient, and transparent wind-down process which balances ongoing operational needs and financial responsibility, and incorporates planned reporting and risk monitoring.

Additionally, the Secretariat is also continuing to update and further develop its “Post-March 2021” plan. This document accounts for those activities where the Completion Action Plan leaves off, ensuring that any Secretariat functions which will need to continue are captured and a plan is put in place to ensure completion of any residual claim-related or administrative activities.

Resource Availability

One of the chief considerations, entering the final years of the process, is to ensure that the necessary resources remain available to complete the remaining work. Balancing the necessity of wind-down and fiscal responsibility with the need to ensure resource availability and manage risk is a delicate task and will be a significant concern through to the closure of the Secretariat.

In September 2018, a submission to the Treasury Board of Canada was approved to fund the Secretariat, the Resolution Health Support Program, and Settlement Agreement Operations in Crown Indigenous Relations and Northern Affairs Canada (representing Canada in the agreement). This submission included estimated funding requirements for Kivalliq Hall claims. With this funding and unspent funds re-profiled from the previous year, funding is now in place according to currently projected needs; however, should timelines change or other significant adjustments be required, further resources may be required.

Of most concern is the availability of Human Resources. The Secretariat is currently in the delicate position of working to balance the need to reduce in size as workloads decrease while retaining sufficient skilled and experienced personnel to complete the remaining workload and allow for potential risks. In 2018, two rounds of planned workforce reductions were announced, in May and November. However, the organization is also experiencing the impact of unplanned vacancies when staff members, understandably, find new work elsewhere in advance of the planned closure of their positions. Remaining staff continue to rise to the challenge, taking on new responsibilities and adapting to ensure the work of the organization continues successfully.

With the conclusion of the process growing ever nearer, the Secretariat cannot offer the attraction of long-term job security, which complicates recruitment efforts, making it more difficult to fill vacancies, particularly in positions requiring specific skills and experience. The loss of corporate memory and the impact to morale is also felt. The Secretariat is implementing its strategic staffing plan and retention strategy and knowledge transfer and preservation initiatives, investing in training and career-building, and placing significant emphasis on teambuilding and integration of teams.

IAP Report on the Achievement of Objectives (Final Report) and Administrative Lessons Learned Report:

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

This multi-year project has involved significant documentary and statistical research, as well as multiple consultations, interviews and focus groups with claimants, parties, committee members, and other stakeholder groups and individuals across Canada. Although 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 the public.

In 2018, the Secretariat presented the first comprehensive, full draft of this report to the Oversight Committee. Following its review, the Committee requested some revisions, updates and additional content, which is currently in progress of development.

In addition to the Final Report for the Oversight Committee, the Secretariat is also preparing a comprehensive Administrative Lessons Learned report, examining the challenges and lessons learned relating to corporate and administrative aspects of the Secretariat and its implementation of its mandate.