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Annual Report: 2020

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Daniel Shapiro, Q.C.

Chief Adjudicator

Michel Landry

Rodger W. Linka

Wes Marsden

Susan Ross

Deputy Chief Adjudicators

Roger Tetreault

Executive Director

Table of Content

About the Indian Residential Schools Adjudication Secretariat

The Indian Residential Schools Adjudication Secretariat (the Secretariat, IRSAS) 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 nonadversarial, 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, 20122. The IAP aims to bring a fair and lasting resolution to harms caused by residential schools through a claimant-centered and neutral process.

The Secretariat reports to Chief Adjudicator Daniel Shapiro, Q.C., whose appointment // by the IAP Oversight Committee was confirmed by the Courts.

I am pleased to provide my Annual Report for 2020, my 8th and final such report as Chief Adjudicator, 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 an unprecedented year in many ways, from the resolution of the few final, yet often highly complex claims, to the management of the various court and administrative questions needing resolution in order to wind down the IAP and the Secretariat, all in the context of a major worldwide pandemic event. I am pleased with the progress that has been made and am grateful for the contributions of our team of adjudicators, the Secretariat’s management and staff, and the many partners and stakeholders to the process who have contributed to the successes seen this year and throughout the IAP.

Performance: the Completion of the Caseload

Key Numbers:

I am very pleased to say that, by the end of December 2020, all of the 38,276 claims received in the IAP had been resolved. 33,861 claims were admitted to the IAP, and with the passage of the September 19, 2012 deadline for all claims, and all subsequent deadlines permitted by the Courts for specific schools or claim types, no further claims can now be admitted. One claim remains with post-resolution work still to complete in the coming months, a complex claim returned in part to us from the Courts late in the year.

Total compensation paid to December 31, 2020, including awards, negotiated settlements, legal fees and disbursements was $3.234B. Compensation was awarded in 89% of claims that went to hearing before IAP Adjudicators, with adjudicator decisions resulting in average compensation of approximately $91,460.3

As illustrated in Table 1, 27 applications were resolved this year, through an adjudicator’s decision, a negotiated settlement, a claimant’s withdrawal or ineligibility.

Table 1: Applications Received and Resolved by Calendar Year4

Calendar Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Total
Applications received 3,849 5,418 4,750 5,148 5,494 12,787 372 132 48 98 2 159 76 12 38,276
Applications resolved 404 1,502 2,897 4,348 4,426 5,345 6,251 5,092 3,642 2,439 1,070 706 127 27 38,276
Adjudicator decisions 322 1,081 2,086 3,210 3,377 3,935 3,938 3,739 2,646 1,494 534 284 112 16 26,774
Dismissals5 0 0 0 1 12 20 53 75 54 329 392 243 4 0 1,183
Negotiated settlements 0 39 280 625 572 742 727 622 510 196 48 47 6 1 4,415
Ineligible/ withdrawn 82 382 531 512 465 648 1,533 656 432 420 96 132 5 10 5,904

Negotiated Settlement Process (NSP)

The Negotiated Settlement Process is handled primarily by Canada rather than the Secretariat. Throughout the course of much of the IAP it was an important path to file resolution. Since the beginning of the IAP, Negotiated Settlements have accounted for approximately 12% of all IAP file resolutions. The complexity of the final cases in the IAP has meant that a smaller proportion of claims have been suitable for negotiation. However, in past years, the NSP’s flexibility and lack of requirement for in-person adjudicated hearing has been of benefit in providing a timely resolution agreeable to the claimant.

Statistical data regarding Negotiated Settlements and resulting compensation is provided by Canada.

Resolving the Caseload: Challenges and Successes in 2020

Kivalliq Hall: At the beginning of 2020, much remained unknown regarding what the final caseload would look like. Kivalliq Hall had been added to the Settlement Agreement by the courts in 2018, and an implementation Order in April 2019 granted former attendees of that residential school until January 25, 2020 to submit applications to the IAP.

A total of 16 applications were received from this population. Of these, only five proceeded to decisions or negotiated settlement, as the rest were either received after the deadline, found to be ineligible, or withdrawn by the claimant following admission. Although the advent of COVID-19 complicated the process of scheduling and holding hearings and negotiating settlements for this group, all were resolved by the end of September 2020. In total, claimants from this institution received approximately $350,000 in the IAP.

Blott DNQ claims:

As described in previous reports, between July and September 2018, a total of 159 claims for former clients of Blott and Company were added to the process by the order of the British Columbia Superior Court. 56 of these were actually submitted by the given deadlines, of which 46 were admitted to the process; the rest were considered ineligible.

These applications were processed swiftly. By January 2020, only six of these claims remained unresolved, pending the conclusion of file-specific issues, and most were near completion. In the end, of the 46 admitted claims, 36 claims received IAP decisions or Negotiated Settlements (the others being withdrawn or dismissed). All but six of these decisions and settlements led to an award. In total, Blott DNQ claimants were awarded approximately $2.4 million.

Estate and Estateless claims:

The Secretariat, Adjudicators, and the parties have worked diligently to complete all remaining IAP work for files where the claimant has passed away prior to their claim’s completion. Such cases require the identification of an estate administrator, which can be a challenging and time-consuming process, as described in detail in previous reports.

At the outset of 2020, five claims with and without identified estate administrators remained in progress, and one claimant passed away following their hearing early in 2020. One additional estate claim was returned to the IAP by the Court for a legal fee ruling in 2020. These claims have now been resolved.

In the May 29, 2020 Order of the British Columbia Supreme Court, Justice Brown invited me to work with Canada to identify claims which had resolved without a known estate administrator and establish a plan to address them. Canada has identified 5 unpaid award and 17 zero-dollar decisions on such claims. Canada is seeking to locate estate administrators where unpaid awards exist, to ensure these awards are paid out to the appropriate inheritors.

The Global Pandemic

The COVID-19 global pandemic has had a profound impact on every Canadian individual and organization. For the Adjudication Secretariat and the IAP as a whole, the pandemic came at a crucial time, when all involved were working to complete claim and administrative work necessary to meet court-mandated deadlines and be ready to close the Secretariat’s doors as of March 31, 2021.

With the advent of the pandemic in Canada, the Deputy Minister of CIRNAC implemented Business Continuity Plans and, on March 16, 2020, Secretariat staff were advised to stay home or asked to return home and work remotely. All staff travel was suspended. Due to limited remote network connections available, for the first several weeks, only 24 managers and staff identified as ‘critical’ were able to access network resources during working hours; other employees were restricted to evening and weekend access. Gradually, additional access and equipment was made available, and by June 11, all staff had remote network access during regular working hours.

Many managers and staff went above and beyond during this period, finding new ways to maintain connections, solve problems, and use their own time and resources to ensure hard deadlines were met, information was available for parties and stakeholders, agreements were amended for Group IAP recipients (see below), and solutions were found to the many unforeseen complications of the change in circumstance. The vast majority of personnel continue to work from home and this situation will continue until the closure of the Secretariat. A handful of employees in records management, financial and administrative roles are working in-office (with significant precautions) on a full- or part-time basis, where the work requires access to physical files or resources.

Group IAP:

The 2019-20 fiscal year was the final year for the Group IAP Contribution program. Eleven groups of IAP claimants had been approved for funding under the Group IAP contribution program, totalling $501,169. Funding for this program concluded as of March 31, 2020; however, the COVID-19 pandemic caused significant difficulties for community groups and, in some cases, prevented the completion of activities by the stated deadlines. Approval was sought and received to extend deadlines for impacted groups to complete activities and provide final reports.

In order to ensure that claimants from Kivalliq Hall also had access to funding, a condensed Call For Proposals process for these claimants was launched November 1, 2019, and closed March 1, 2020. No applications were received.

My Records, My Choice: IAP Claim Records Disposition

Notice Program:

As discussed in detail in previous years’ reports and elsewhere, following the release of the Supreme Court of Canada decision regarding IAP records disposition in October 2017, Justice Perell, the Eastern Administrative Judge, issued a Direction and Order in July 2018 approving the consent forms to be used in requesting records to be provided to claimants or to the National Centre for Truth and Reconciliation (NCTR) and establishing the terms of the program to notify former students of their right to archive their records, redacted of information identifying alleged perpetrators or others.6

The Notice Program was launched in January 2019 and consisted of multiple phases, including the creation and distribution of information through a multi-pronged approach. In 2020, efforts focused primarily on Phase 3 of the Notice Program, which involved information sharing over the telephone, electronic and posted mail to community services providers. The Secretariat identified and attempted to contact 2,301 community organizations across Canada to seek opportunities for partnerships in sharing information to help ensure claimants were informed of their rights with respect to their claim records.

This outreach was significantly hampered by the COVID-19 pandemic, which caused many of the community organizations in question to temporarily close down and/or significantly reduce their availability to respond and to commit to partnerships. Nonetheless, despite a temporary hold on these contact attempts early in the pandemic, no fewer than 1,343 partnerships were confirmed, and in many additional cases, positive indication was given of intent to share the information even where full partnerships were not confirmed (for example, 85 organizations requested mail-outs of information products) despite a lack of a confirmed partnership, and several organizations indicated they had already been displaying information products previously sent.

Building on the success of the Notice Program, the Secretariat also provided printed informational material to 110 organizations identified as having current contracts for the Residential Health Support Program.

In addition to English, French, and Innuktitut, throughout the implementation of Phase 3, the Secretariat received requests for and provided information in the following additional languages: Dene, Tlicho/Dogrib, Innu-aimun/French Innu, Plains Cree, and Eastern James Bay Cree. Once shared with the requesting communities, these additional resources were also added to the My Records, My Choice website and are available for download.

Since the beginning of the Notice Program, the Secretariat has received 155 Request forms for copies of documents to be sent to the claimant; 41 of these were from individuals who did not have an identifiable ADR or IAP claim; 113 have been fully processed and one was in progress as of December 31. We have also received 38 Consent forms for sharing of documents with NCTR. Eleven of these were confirmed to be from non-claimants, and the rest have been fully processed.

Notice Program materials and related information can be accessed at:

With the conclusion of Phase 3, as part of the wind-down and closure of the Secretariat, responsibility for continuing Notice Program activities is being transferred to Epiq Global (formerly, Crawford Class Action Services), as directed by the Courts. The websites above will remain available until the deadline for requests passes in 2027.

Disposition of Claimant Records:

The Supreme Court of Canada’s decision regarding the disposition of Claimant records created in the course of the IAP provided specific direction as to how the many and various records created over the course of an IAP claim would be retained or destroyed. These records are, by their nature, highly personal and sensitive and must therefore be handled with the greatest care.

Since the release of the Court’s decision, Secretariat staff have been working constantly on the multi-year project of sorting documents, deleting and destroying those which would not be retained, and creating the repository of retained documents to be kept on file until the passage of the September 19, 2027 deadline for claimants to indicate their choice whether to obtain a copy of their records, refer them to the National Centre for Truth and Reconciliation for archive, or do nothing and allow them to be destroyed.

This task has incorporated both physical and electronic records from both the Alternative Dispute Resolution (ADR) process and the IAP, for a total of 43,653 claim files, from many repositories and has involved staff across the Secretariat.

As of the end of December, electronic and physical records disposition has been completed, with the exception of a small number of specific claims which have not yet reached the archival stage (court-mandated holds, or only very recently completed); those not subject to court-ordered hold are expected to be completed early in 2021. Non-retained records have been deleted and destroyed, and the electronic records to be retained by Epiq are undergoing quality review and their physical counterparts shredded.

I am very proud of all of the Secretariat staff for managing this work despite the challenges presented by the pandemic. I wish to especially acknowledge the exceptional work of the Mail and Records Unit Lead, Cara Flaman, and her staff, under very trying circumstances since the pandemic was declared.

Non-Claim Records Disposition:

Whereas the Supreme Court’s decision described above determined the final disposition of claim-specific documents, the fate of other records, both administrative and operational, has been the subject of additional intensive work and Court Action over the past years.

As part of the Secretariat’s Records Disposition Plan, a massive, organization-wide electronic document clean-up project has taken place and is largely completed. This has involved all Secretariat staff and a significant amount of planning, monitoring, and adjustment, as massive amounts of documentation have been generated over the 13.5 year life of the Secretariat (18+ years, if one includes the former ADR process, for which records also remain). The project involved the review and organization of information stored on shared, personal drives, email accounts and in a records management system into a cohesive collection and discarding of duplicates in preparation for transfer of the collection/disposition according to the forthcoming direction of the Courts.

On October 2, 2020, Canada submitted its proposal for archiving copies of non-claim records with the NCTR in the form of a Request for Direction (RFD), and the matter is expected to be heard before Justice Perell in early February 2021.

Following Canada’s RFD submission, the Secretariat received a letter from Library and Archives Canada (LAC) on December 2nd, 2020 to convey notice of the approval of the validation report covering the activities of the Secretariat and a copy of the Disposition Authorization Application Guide. Secretariat staff are in the process of reviewing the documentation provided by LAC.

The NCTR’s appeal on Canada’s RFD was heard by the Ontario Court of Appeal on October 29, 2020. The NCTR was granted a stay of the destruction of the SADRE database pending the final determination of their appeal. As of the writing of this report, a decision had not yet been received.

On December 17, 2020, the NCTR submitted an RFD to the Ontario Superior Court seeking an order regarding the School Narratives and supporting historical documents.

These requests for direction to the Courts will not likely be finally resolved before the closure of the Secretariat, and even should they be decided before March 31, it is unlikely that sufficient time would remain to implement the resulting direction. A handful of former Secretariat staff are expected to remain after closure as a unit embedded within CIRNAC to facilitate the transfer of the information repositories and prepare documents for the implementation of the Court’s directions by Canada, along with other necessary administrative cleanup work related to the Secretariat’s closure.

The Sunset of the IAP

Justice Brown issued the IAP Sunset Order on May 29, 2020. The key dates for completion are as follows:

Date Activity
December 1, 2020 Adjudication of all claims to be completed
December 31, 2020 Suspension of Canada’s requirement to destroy IAP documents in its possession lifted
December 31, 2020 Suspension of the Chief Adjudicator’s requirement (Notice Program) to destroy the Secretariat’s SADRE case management system data, the IAP Decision Database, and the Master List of Admissions, shall be lifted
March 31, 2021 Canada’s requirement to destroy IAP documents to be completed
March 31, 2021 Chief Adjudicator’s requirement (Notice Program) to destroy the Secretariat’s SADRE case management system data, the IAP Decision Database, and the Master List of Admissions to be completed
March 31, 2021 The Chief Adjudicator shall assemble and transfer the IAP retained Document Collection to the Records Agent March 31, 2021 The Chief Adjudicator shall destroy all remaining IAP Documents (excluding retained documents)
March 31, 2021 The Chief Adjudicator shall destroy all remaining IAP Documents (excluding retained documents)

An application to vary the IAP Sunset Order was heard by Justice Brown on December 31, 2020, resulting in a decision on February 3, 2021 that suspended the Chief Adjudicator’s requirement to destroy information related to claimants who attended St. Anne’s IRS pending the outcome of the Metetawabin2 Request for Direction and Canada’s Request for Direction regarding St. Anne’s IRS.

A draft information and resource “Exit Package” for the Court has been completed and presented to the Oversight Committee and Court Counsel. The final materials will be supplied to Court Counsel in the near future.

Secretariat Capacity

By the end of 2020, the Secretariat had reduced in size to 34 staff, down by nearly half from approximately 64 employees at the beginning of the year. By comparison, at its peak, the Secretariat employed approximately 275 individuals. The Secretariat continues to support staff in planning for their future careers and empowering them in finding new opportunities when their positions wind down.

Despite the restoration of network access described above, the COVID-19 pandemic continues to challenge the Secretariat’s human resources, with workforce reductions being undertaken at distance, and the many complexities of managing teams and maintaining a healthy and productive workforce in a time of unprecedented anxiety and uncertainty.

The Secretariat’s staff have continued to provide dedicated and high-quality service over the past year and throughout the IAP, adapting to changes in the operational environment and managing a controlled wind-down under circumstances no one could have predicted. Their contributions and continued dedication to this claimant-centred process have been incalculable.

Adjudicator Capacity

As the IAP caseload has been essentially completed, only 12 adjudicators, two Deputy Chief Adjudicators and I remain with the IAP. Adjudicator contracts, in place until March 31, will be allowed to conclude as planned but many adjudicators have already begun the administrative processes related to departure.

Deputy Chief Adjudicators (DCAs)

Two DCAs completed their work in the IAP in 2020.

DCA Michel Landry was an adjudicator since the fall of 2008 and appointed a Deputy Chief Adjudicator the following year. DCA Wes Marsden was an adjudicator since 2010 and appointed a DCA in 2014.

DCA Susan Ross continues to work on special projects. DCA Rodger Linka is available to assist with remaining work/supervision if required.

I also wish to again acknowledge and thank the DCAs who retired from the IAP before 2020: Kaye Dunlop, Catherine Knox, Delia Opekokew and Lisa Weber.

The resourceful and dedicated work and support of the DCAs has been indispensable to the success of the IAP. I wish to acknowledge their exceptional contributions. I could not have carried out my work as Chief Adjudicator without their tireless dedication, support, and resourcefulness, often in difficult and challenging circumstances. I owe all DCAs, past and present, a huge debt of gratitude. It has been an honour and a privilege to work with them. I wish them every success in their future endeavors.

IAP Final Report:

The Oversight Committee has approved the final version of its IAP Final Report and a comprehensive Summary. The Final Report is currently undergoing translation, and graphic design is underway. It is currently expected that the report will be finalized and ready for release in March 2021.

Challenges to the IAP Sunset:

In addition to the challenge discussed above that questions before the Courts pertaining to non-claim Records disposition will not likely be finally resolved before the closure of the Secretariat, there remain a small number of potentially significant matters which could impact the conclusion of the IAP.

Requests for Direction have been brought to the Courts by former students of St. Anne’s Residential School and by Canada. These actions could potentially result in the re-opening of certain claims. I am not participating in these Requests for Direction. It is expected that these matters will not be finally resolved until after the closure of the Secretariat and the end of the IAP; therefore, any resulting process to manage such claims will require administration by the Courts.

Additionally, there remains one claim not yet fully complete in the IAP. This complex track claim involving Actual Income Loss (AIL) and Other Wrongful Acts (OWA) had been referred to the Courts; on October 28, Justice Perell ruled that the claim would follow a bifurcated process wherein the AIL portion of the claim would be heard by the Court, and the OWA portion would proceed through the review process in the IAP, and upon completion of both processes, the two streams would be rejoined. The review decision was released December 30, 2020; however, the re-review process will not be completed until March. The AIL portion of the claim will not likely be completed for at least several months, and should the Court’s decision be appealed, such an appeal could not be completed by the end of March.

Per the IAP Completion Strategy, the December 1, 2020 deadline for completion of all adjudication functions has been met, notwithstanding the above matters, and preparation continues to close the Secretariat on March 31, 2021. All adjudicator, DCA, Chief Adjudicator and Oversight Committee member contracts will expire on March 31, 2021. The final round of reductions for staff that provided adjudicative supports occurred in late November 2020 and, aside from the handful of staff mentioned above to be embedded within CIRNAC, no Secretariat staff are expected to be available beyond March 31, 2021. Proceeding to closure according to the established timelines, while recognizing that there are ongoing matters before the courts, is supported by the OC Chair and majority of OC members and endorsed by Court Counsel. The courts are well equipped to resolve matters before them now, and those which may be brought to them in future, without the need for administrative and adjudicative structures to remain in place. The IAP was always intended to be a temporary tribunal, and our responsibility now is to bring our portion of this work to its conclusion and pass it forward, bringing this chapter of the historic Settlement Agreement to an end.

In Memoriam

With sadness and the greatest of respect, I wish to acknowledge the passing of two highly distinguished Canadians from Victoria with profound connections to the IAP, each of whom will be greatly missed.

Ted Hughes was the Chief Adjudicator in the ADR Program that preceded the IAP, from 2003 to 2008. Ted built the foundations for a claimant-centred adjudication process from scratch. Many of his innovations, and his highest ideals, were reflected in the IAP. Ted made impressive contributions as a judge in Saskatchewan, Deputy Attorney General in British Columbia, and presided over numerous high profile public inquiries.

Joseph Arvay was my lead counsel before the Courts regarding many cases in the IAP, including the Supreme Court of Canada’s deliberations regarding the disposition of Clamant documents. Joe was a brilliant and fearless advocate. His contributions to the IAP, and more broadly to public law and the practice and interpretation of Canadian law, cannot be overstated.

In Conclusion

I wish to acknowledge the exceptional dedication of Secretariat staff to the success of the IAP, and their support of adjudicators and determination to make the IAP a claimantcentered process. They strove to create sacred spaces out of hearing rooms, whether in claimants’ homes, hotel meeting rooms, lawyers’ offices, hospitals or nursing homes. I am constantly amazed at the depth of commitment and skill of Secretariat staff, past and present. While we held a virtual event last fall with past and present staff and adjudicators to mark the closure of the IAP, I had always hoped and expected that there would be an opportunity to thank many of them in person before the IAP lights went out. Unfortunately, the pandemic has made this impossible.

While the contributions of all Executive Directors and Senior Advisors, past and present, to my work and that of my predecessor have been acknowledged in previous reports, they bear repeating. I now wish to acknowledge and thank the present Executive Director, Roger Tetreault for his support throughout the challenging phase of the IAP over which he has led Secretariat staff – the daunting task of bringing the IAP to a close – which has proven to be at least as challenging as getting it ramped up. Always goodnatured, calm, capable, knowledgeable and reliable, he has carried out his responsibilities with sensitivity, skill and commitment.

I have been fortunate to have enjoyed the mentorship, advice, example and support of wonderful leaders, ADR Chief Adjudicator Ted Hughes, former IAP Chief Adjudicator Dan Ish, and former Senior Policy Advisor Irene Fraser.

I am proud to have led an accomplished group of adjudicators that at one point numbered 108 from coast to coast to coast, over 7.5 years while serving as Chief Adjudicator and to have worked with them for 6 years before that as a Deputy Chief Adjudicator. They are a resourceful, empathetic, intelligent, intrepid and resilient group. I have learned a great deal from them.

I am grateful for the support of and opportunity to benefit from the guidance, wisdom and experience of Chair Mayo Moran and the stakeholders’ representatives on the IAP Oversight Committee. Incredibly, some members of the Oversight Committee have volunteered tirelessly for years – and, Chair Moran and two members, Reverend David Iverson and David Paterson, have served on the Committee since its inception.

Finally, and most importantly, I honour the tens of thousands of Indigenous Canadians who have been at the heart of this process, who trusted our adjudicators with their experiences and allowed us to walk with them for a small but hopefully important part of their healing journeys. They revealed difficult and painful experiences to us, while sharing their cultures, often their humour and always their humanity. It has been the honour of my lifetime to learn first-hand from them about this dark chapter in Canadian history, but equally to see in them the promise of the future. They will always have my greatest respect and a special and enduring place in my heart.

Looking back over the 13+ years of the Independent Assessment Process, it is somehow both gratifying and astonishing to think that this task is near completion. There can be no doubt that our efforts to implement this portion of the Settlement Agreement will be studied, debated and analyzed for years to come, and history will judge our successes and the areas in which we, or the Settlement Agreement itself, fell short of the mark.

Nonetheless, the wind-up of the IAP is the end of but one small part of the greater process of Reconciliation, a goal that, due to the Settlement Agreement, is now firmly etched in the consciousness of Canadians, one well worth working for, as long and as hard as it takes to achieve. It is my sincere hope that the IAP, and its individual recognition and validation of the harms wrought by the Residential School system, has made a meaningful and lasting contribution to healing and justice both for the parties themselves, and to the lasting reconciliation of all parties to the Agreement and the peoples of Canada.

All of which is respectfully submitted,

Daniel Shapiro, Q.C.
Chief Adjudicator