Changes to the Complex Track

The complex track of the IAP originally included a pre-assessment hearing. This hearing was to occur before the expert assessment and the full hearing. The Chief Adjudicator identified some difficulties with such pre-assessment hearings. As a result, he proposed a change of procedures for the complex track that were approved by the National Administration Committee on 16 January 2008.¹Primarily, the change is to compress the preliminary assessment and the full hearing into one.²

The complex track addresses claims of actual income loss and other wrongful acts.³ A pre-assessment hearing was originally required to determine the credibility of the claimant and whether a prima facie case for the claim to proceed in the complex track had been established. Any answers given in these proceedings were to be on a without prejudice basis, not recorded or transcribed, and not admissible in other phases of the hearing.⁴ Provided the prima facie basis had been made out, the adjudicator would arrange for expert assessments. If negotiated settlement did not occur, the claim would proceed to a full hearing – the second hearing for the claimant to undergo.

There are several difficulties with the pre-assessment procedure. There is no right of internal review. There is no record made of the initial hearing. The process would lead to unnecessary delays. Moreover, having to retell painful stories in the second hearing entails significant potential for adverse impact on the claimant. In addition, claimant’s answers are supposed to be “without prejudice” but are in fact “with prejudice” as the adjudicator is permitted to dismiss a claim based on those answers.

In light of these difficulties, the Chief Adjudicator set out a new Practice Direction, designed to improve the complex track procedures. The major change is that the two hearings are combined into one. The process is as follows.

• In the complex track, the adjudicator will hold a pre-hearing teleconference with claimant’s counsel or the claimant to make sure the hearing will proceed as efficiently and effectively as possible.
• The initial hearing will be arranged so that all of the claimant’s evidence can be heard.
• In it, the claimant will answer all questions from the adjudicator and, based on the evidence, the adjudicator will make an assessment of credibility and determine whether there is a prima facie basis to support the claim in the complex track.
• If a prima facie basis is not made out, the hearing will continue under the standard track guidelines.
• If a prima facie basis to support the claim in the complex track is made out and the adjudicator finds the claimant to be credible, the adjudicator shall arrange for expert assessments after the hearing.
• At any time the government and the claimant may attempt to settle the claim.
• If negotiated settlement is not attempted or is unsuccessful, the claim will proceed to conclusion and decision by the adjudicator.
• Claimants may be recalled if appropriate circumstances exist.

This Practice Direction makes significant accomplishments. It allows the parties to convene only once. It lowers costs for hearings. It reduces potential re-victimization of the claimant. Moreover, adjudicators will have detailed evidence on which to assess the claim because the initial hearing is the full hearing. As a result, directions to experts will be based on concrete evidence. Plus, the process ensures a proper record is kept of all proceedings. It also enables every claimant with a right of review. Fundamentally, this Practice Direction accords with the IAP’s spirit of openness, fairness and transparency.

 

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