Under the Independent Assessment Process, an independent Adjudicator hears the case and decides on the award amount, based on the compensation framework.
The compensation framework is supported by four principles:
A claimant can be compensated if one of the following acts is proven:
The Adjudicator will decide what acts of the abuse the claimant has proven, and will assign points based on the most serious act. Other abuse proven by the claimant is taken into account when the Adjudicator assesses the severity of harm that was caused to the claimant. (See IRSSA Schedule D, the IAP [size: 173 KB – format: PDF], page 34.)
If abuse is proven, a claimant is eligible for compensation points for:
Awards for sexual abuse range from $5,000 to $275,000. Awards for physical abuse range from $11,000 to $35,000. Awards for other wrongful acts range from $5,000 to $35,000.
Claimants are also eligible for Actual Income Loss when they can prove that the loss of income was a result of a proven claim of abuse. Up to $250,000 can be awarded for Actual Income Loss.
Note: A claimant can choose to seek compensation for either Loss of Opportunity or Actual Income Loss, but not both.
The Adjudicator has the discretion to decide what award amount is appropriate. (See IRSSA Schedule D, the IAP [size: 173 KB – format: PDF], page 37.)
The framework is designed to ensure that compensation is assessed on an individual basis. The Adjudicator considers the impact of an abuse event on the claimant when deciding the award.
In addition to awards based on points, claimants may receive:
Future care awards, such as treatment or counseling, can total $10,000 for general care and can be increased to $15,000 if treatment by a psychiatrist is required.
Claimants who have a lawyer can receive an extra 15% of their total compensation award for legal fees, paid by the Government of Canada. Counsel may charge fees beyond this 15%. Claimants and their lawyers may have to submit their retainer agreements to the Adjudicator after an award decision is made but before it is paid out. The Adjudicator will ensure that you are not charged more 30% for legal fees. At your request, the Adjudicator can also review your lawyer’s fees to ensure they are fair and reasonable.Canada will also pay reasonable and necessary out-of-pocket costs.
The compensation framework is applied in two different IAP resolution tracks.
The standard track resolves most claims. In it, the claimant must prove the abuse and the harms on the balance of probabilities, and then show that the proven harms were plausibly linked to the proven abuse. In other words, the claimant has to show that there it is more likely than not that they were abused and that it is more likely than not that they have the harms they say they do. The claimant then has to prove that it is reasonable to conclude that those harms resulted from the abuse.
The complex track resolves claims of Actual Income Loss and Other Wrongful Acts. The standard of proof required for complex track claims is higher than that for standard track claims. This means that if the claimants had factors in their life other than residential school abuse that caused or significantly contributed to their harms, the Adjudicator must take these factors into account. The Adjudicator will have to ask in-depth questions about all aspects of the claimant’s life to determine if their harms were caused by the residential school abuse. For that reason, claimants should seek legal counsel.” (the causation standard of proof is lifted from the Chief Adjudicator’s Guidance Paper on Other Wrongful Acts).
Claimants who are pursuing complex track claims without legal counsel will have a pre-hearing telephone call with an Adjudicator to help determine if their claim is in the right track.
When the claimant has their hearing, the Adjudicator will decide whether the claim properly fits in the complex track.
Once Adjudicators have held a hearing in either of the resolution tracks, they review the testimony from claimants and any witnesses and experts. The Adjudicator then writes a decision, explaining how the points were calculated and the award arrived at.