Publications

Information Sheet on Estate Claims in the Independent Assessment Process
February 2, 2015

The Indian Residential Schools Adjudication Secretariat makes every effort to expedite the Independent Assessment Process (IAP) claims of survivors who are elderly or in ill health. However, in the unfortunate event that a claimant should pass away before the claim is resolved, their estate may be able to continue the claim. Only the Estate Representative (Executor or Administrator) of an estate may pursue an estate claim, and they may choose to hire a lawyer.

Depending on the evidence available, it can be very difficult to pursue an estate claim. Because of the unique nature of these claims and the need to resolve them in a fair and orderly manner, the Indian Residential Schools Adjudication Secretariat has established special procedures for handling estate claims. This document provides a summary of the evidence required to prove an estate claim and the procedures for pursuing them.

This information sheet provides general information only and is not intended as legal advice for specific cases, nor as direction or guidance to adjudicators1. We recommend that all IAP claimants, including estate claimants, retain qualified legal counsel.

What is an estate claim?

  • An estate claim is when a Claimant has passed away before receiving compensation in the IAP, and the official representative of the deceased Claimant’s estate continues the claim, or has applied to the IAP on their behalf.

When is an estate claim possible?

  • An estate claim is only possible where there is acceptable evidence to prove the claim. There are three main ways this can happen for an estate claim:
    1. if the Claimant has already had their IAP hearing before passing away;
    2. if the Claimant has previously given meaningful and reliable sworn evidence with the participation of Canada; or
    3. if there is eyewitness testimony2.
  • The following sections provide more details on each of these options.

1. Previous IAP hearings

  • If the Claimant has testified at an IAP hearing before passing away but before compensation is decided, the adjudicator can usually write the decision based on the Claimant’s evidence and the documents submitted in the case.
  • In most cases, the adjudicator will hold a conference call with the Estate Representative and the other parties to discuss the next steps.

2. Other sworn evidence by the Claimant

  • If the Claimant has not testified at an IAP hearing, the claim may be able to go ahead if:
    • the Claimant previously gave evidence under oath;
    • Canada questioned the Claimant or had the opportunity to participate in the questioning3; and
    • the Claimant’s evidence involved a meaningful and detailed description of their experiences at a residential school, including acts, harms and other loss the Claimant experienced4.
  • Existence of previous sworn evidence does not necessarily mean compensation will be awarded. The adjudicator must determine whether the evidence is credible and reliable, and the claim must meet all the other requirements of the IAP5.
  • Previous sworn evidence can include:
    • hearings in the Indian Residential Schools pilot projects that took place between 1999 and 2004;
    • hearings in the Indian Residential Schools Alternative Dispute Resolution process that took place between 2004 and 2010;
    • examinations for discovery in litigation related to abuse at Indian Residential Schools that took place prior to September 19, 20076; or
    • testimony at criminal or civil trials.
  • Some kinds of evidence that are not acceptable are:
    • the IAP Application Form, whether or not it was signed by the Claimant;
    • sworn affidavits7; and
    • transcripts of sworn evidence where the Claimant was not examined in sufficient detail to prove or challenge a compensable claim.
  • The Adjudication Secretariat can provide transcripts for past ADR and IAP hearings. For information, contact the Estate Claims Coordinator.
  • Transcripts from examinations for discovery or other litigation proceedings must be obtained from Canada or from the Court. The Estate Claims Coordinator may be able to help you obtain transcripts from Canada, at no charge. If the transcripts are held at the Court, the Adjudication Secretariat cannot pay fees to obtain these transcripts, but fees may be paid as a disbursement if the claim is successful.

3. Eyewitness testimony

  • An eyewitness is a person who saw eligible abuse take place. An eyewitness may be able to testify at an IAP hearing for an estate claim about things they saw happen to the Claimant9.
  • Eyewitness testimony does not include information that the Claimant told the witness after the events10. This is called “hearsay” and is usually not allowed in the IAP11.
  • The Estate Representative is responsible for finding any eyewitness and providing a witness statement to the Adjudication Secretariat at least two weeks before the hearing.
  • The participation of any witness is voluntary; they cannot be forced to appear.12
  • The Adjudication Secretariat will arrange and pay for travel expenses for the witness to attend the hearing.

What other requirements apply to estate claims?

  • In addition to having evidence to prove the claim, the claim must meet all other requirements of the IAP, including the following:
    • an application must have been filed by the IAP Application Deadline, September 19, 2012;13
    • the application must describe abuse that is eligible for compensation in the IAP;
    • the Claimant must have been alive on May 30, 2005;
    • the Claimant must not have opted out of the Settlement Agreement; and
    • the Claimant must not have already resolved their abuse claim in the IAP, the previous ADR process, in an ADR pilot project, or in litigation.14

How do I pursue an estate claim?

  • There are four main steps to pursue an estate claim:
    1. Determine if the claim is eligible to proceed.
    2. Decide on legal representation and submit estate documents.
    3. Participate in a pre-hearing teleconference.
    4. Prepare for and attend the hearing.
  • The following sections provide more details on each of these steps.

Step 1 – Eligibility

  • You should consider carefully what evidence is available that would help prove the claim. The sections above discuss the kind of evidence required to prove an estate claim.
  • If you decide not to pursue the IAP claim, you should finalize this by withdrawing the claim. To withdraw the claim, write a letter or fill out the Withdrawal Form, and send it to the Estate Claims Coordinator at the Adjudication Secretariat.

Step 2 – Estate documents and legal representation

  • Only the executor or administrator of the estate may pursue an estate claim. This person is called the Estate Representative. The Adjudication Secretariat recommends that all Estate Representatives hire a lawyer.
  • Estate documents are required to confirm the identity of the executor or administrator of the estate and to prove the claimant passed away after May 30, 2005.
  • The following documents are required. Please send copies only; we cannot return originals.
    1. To confirm the identity of the executor or administrator of the estate, a copy of one of the following:
      • letters of probate; or
      • formal appointment of administrator/executor; or
      • provincial letters of administration.
    2. To prove the claimant passed away after May 30, 2005, a copy of one of the following:
      • death certificate issued by the province, territory, or state; or
      • certificate of death from the director of a funeral home or an administrator of a hospital or clinic; or
      • registration of death; or
      • statement of verification of death from Department of Veterans Affairs.
    3. If applicable, a lawyer must confirm in writing that they represent the estate in the IAP in order for the claim to proceed.
      • A lawyer who was representing a claimant who passed away does not automatically represent their estate. The estate must hire the lawyer or retain a new lawyer if they wish to do so.
      • Alternatively, the executor or administrator may proceed with the claim on a self-represented basis.
  • All documents should be sent to the Adjudication Secretariat.

Step 3 – Pre-hearing teleconference

  • All estate claims have a pre-hearing teleconference before a hearing is scheduled. The primary purpose of the teleconference is to assess whether there is sufficient evidence for the claim to proceed. Other topics that may be discussed include:
    • determining which acts of abuse may be supported by the proposed evidence, and which alleged abusers need to be advised of allegations against them;
    • what documents will need to be filed in support of the claim; and
    • whether there is a possibility of a negotiated settlement instead of a hearing.
  • Normally, the Estate Representative must submit the following documents at least two weeks before the teleconference:
    • transcripts of any sworn evidence;
    • witness statements of any proposed witnesses.

The teleconference will be run by an adjudicator. The Adjudication Secretariat’s Estate Claims Coordinator may attend to assist the adjudicator. The Estate Representative (or their lawyer), a representative of the government, and a representative of the church (if participating) will attend.

  • possible outcomes of the teleconference include the following:
    • If the adjudicator believes there is sufficient evidence to proceed to a hearing, the adjudicator will refer the claim to the Adjudication Secretariat to be scheduled. The adjudicator will determine whether the hearing will be in person or by teleconference.
    • If the adjudicator believes that the claim cannot proceed in the IAP, the adjudicator will deal with the claim under the Procedures for Jurisdictional Review in the IAP.15
    • If the Estate Representative decides to withdraw the claim, the adjudicator will write a decision to confirm the withdrawal.16
    • The adjudicator may take any other step under the Incomplete File Resolution Procedure, such as establishing timelines, setting further conference calls, or taking other steps to help resolve the claim.17

Step 4 – Hearing

  • If the adjudicator refers the claim to be scheduled for a hearing, the Adjudication Secretariat will schedule a hearing once any required mandatory documents have been submitted. The hearing will usually be held by a different adjudicator.
  • Negotiated settlements: The parties may agree to settle the claim without a hearing, as normally provided in the IAP. If a negotiated settlement cannot be reached, we will schedule a hearing.
  • Non-resident claimants: If the deceased former student was a non-resident (i.e. they did not live at a residential school) and did not sign a Schedule P release prior to passing away, the Estate Representative must sign the release before the claim can be scheduled for a hearing. All non-resident Claimants are required to sign a Schedule P Release before a hearing can take place. The Estate Representative is not required to sign a Schedule P Release prior to a pre-hearing teleconference.
  • Alleged perpetrators: Alleged perpetrators have the same right to be contacted and heard by the adjudicator as in any other claim.

How will the adjudicator decide compensation?

  • The same standards apply to estate claims as in any other claim. The adjudicator will need to decide if the evidence is credible and reliable, and determine if the claim is eligible for compensation in the IAP.18
  • Some kinds of compensation in the IAP, including compensation for Harms, Aggravating Factors, and Opportunity Loss, require evidence about the subjective effects of the abuse on the Claimant’s life.19
    • If the Claimant has previously given sworn testimony but it does not include sufficient detail about Harms, Aggravating Factors, and Opportunity Loss, the adjudicator will not be able to award compensation points for them.
    • If there is no previous sworn testimony from the Claimant, and the Estate is relying on an eyewitness to prove the claim, compensation points cannot be awarded for Harms, Aggravating Factors, or Opportunity Loss.
    • At the pre-hearing teleconference, the parties may discuss the levels of Harms and Opportunity Loss to be claimed, and the evidence available, which may affect the mandatory documents that need to be submitted.
  • Certain levels of compensation require the Claimant to attend a medical or expert assessment after their hearing. If the Claimant passed away before attending an assessment, the adjudicator will not be able to award compensation at these levels unless the parties agree. If the Claimant attended an assessment ordered by an ADR or IAP adjudicator, a party may require the assessor to testify.20
  • Compensation for Future Care cannot be awarded in an estate claim.21

What supports are available?

  • Participation in the IAP can be difficult, especially if you have experienced a recent loss.
  • The Indian Residential Schools Resolution Health Support Program provides mental health and emotional support services to former Indian Residential School students and their families before, during and after their participation in the IAP. A full range of services, including emotional support, cultural support, professional counselling, and funding for transportation are available.
  • For more information:
    • 24-hour crisis line: 1-866-925-4419
    • Information and referrals to health support services: 1-877-635-2648

Who can I contact about estate claims?

  • The Estate Claims Coordinator at the Indian Residential Schools Adjudication Secretariat can provide information and answer questions about the procedures for estate claims.
    • Phone: 604-666-6767
    • Email: estates-successions@irsad-sapi.gc.ca
      (Please do not send confidential documents by email.)

Where do I send documents?

  • Estate documents and notices about legal representation (see above) can be sent directly to the Adjudication Secretariat’s Estate Claims Coordinator:
    • EDI22: ’Estate Documents’
    • Fax: 604-666-7068
      Attention: Estate Claims Coordinator
    • Mail: Indian Residential Schools Adjudication Secretariat
      Attention: Estate Claims Coordinator
      810-1166 Alberni Street
      Vancouver, BC V6E 3Z3
      Please send copies only. We cannot return originals.
  • All other documents, including mandatory documents, must be sent to:
    • EDI: ‘Document Management’
    • Mail: Indian Residential Schools Adjudication Secretariat
      Document Management
      P.O. Box 1575, Stn “B”
      Ottawa, ON K1P 0A9

Footnotes

  1. This information sheet refers to relevant review and re-review decisions on other cases, which establish some of the rules for pursuing an estate claim. These decisions are available on the IAP Decision Database to lawyers representing claimants. Estate Representatives working without a lawyer may obtain copies from the Estate Claims Coordinator.
  2. 10-D-15417, Re-review Decision, para. 4.
  3. 10-J-14246, Review Decision, para. 26.
  4. 10-D-15417, Re-review Decision, para. 24.
  5. 10-J-14246, Review Decision, para. 26.
  6. 10-J-14246, Review Decision, para. 26.
  7. 10-J-14246, Review Decision, para. 26.
  8. 10-D-15417, Re-review Decision, para. 24.
  9. 10-D-15417, Re-review Decision, para. 27.
  10. 10-D-15417, Re-review Decision, para. 36.
  11. 10-D-15417, Re-review Decision, para. 20, 10-J-14246, Review Decision, para. 27.
  12. Schedule D, III(e)(xi) on p. 10.
  13. The Application Deadline for former students of the Mistassini Hostels was September 2, 2013.
  14. If the claim was settled in the previous ADR process, the re-opener provisions in the Settlement Agreement may apply. Consult the Estate Claim Coordinator for more details.
  15. See Chief Adjudicator’s Directive 9 – Procedures for Jurisdictional Review in the IAP, available at http://www.iap-pei.ca/legal/directives-eng.php?act=cad-9-eng.php
  16. See Guidance Paper 8 – Withdrawal of IAP Claims, available at http://www.iap-pei.ca/legal/directives-eng.php?act=gp-8-eng.php
  17. See http://www.iap-pei.ca/information/pub-eng.php?act=iapfg-ifrp-eng.php
  18. 10-J-14246, Review Decision, para. 26; 10-D-15417, Re-review Decision, para 19.
  19. 10-D-15417, Re-review Decision, paras. 44, 47, and 50
  20. Schedule D, Appendix VI, on p. 26-27.
  21. Schedule D, Appendix IX, on p. 37.
  22. EDI is the Adjudication Secretariat’s secure Electronic Document Interchange system. It is available to lawyers representing claimants, including estate claims, in the IAP. For more information, please call 1-877-635-2648.