The IAP Compensation Framework

Former students of Indian Residential Schools (IRS) who experienced serious physical or sexual abuse causing significant psychological harm have a right to seek financial compensation through an application to the Independent Assessment Process¹ managed by the IRS Adjudication Secretariat. An independent adjudicator hears the case and decides the appropriate award amount based on a compensation framework. The framework sets-out the range of points that can be attributed to different types of abuse and the resulting harm to the claimant.

Principles

The compensation framework is supported by four principles:

• consistency among many cases heard across the country;
• transparency of available compensation levels for different types of abuse;
• fairness in terms of providing individualized compensation to each claimant for both the abuse suffered and harm caused; and
• equivalency of compensation to what the courts would award.

Acts of abuse compensated in the IAP

In the IAP, compensation can be obtained if one of the following Acts is proven:

• Sexual or physical assaults, occurring on or off the premises of a listed residential school² , committed by an adult employee of the IRS or other adults lawfully on the premises.
• Sexual or physical assaults committed by one student against another where the abuse happened on the premises of the IRS and staff knew or should have known that the abuse was occurring but didn’t take steps to prevent such abuse; or, in predatory or exploitative sexual assault cases involving the most serious types of sexual assault (SL4 and SL5)³ , where reasonable supervision was not in place, irrespective of staff knowledge.
• Any other wrongful act (OWA) perpetrated by an adult employee of the IRS or any other adult lawfully on the premises which caused serious psychological harms to the claimant.

How the Compensation Framework works

The compensation framework uses a point system to compensate claimants, whereby:

• Points are assigned for:
• The most serious proven act of abuse (5 to 60 points)
• Harm resulting from proven abuse (1 to 25 points)
• Aggravating factors that made the abuse worse (5-15% top-up, or 1 to 13)
• Loss of opportunity resulting from proven abuse (1 to 25 points)
• The points are then totaled. The total range of points corresponds to a dollar amount range:
• 1 to 10 points results in a compensation amount between $5,000 and $10,000.
• The highest points range, 121 or more points, results in a compensation amount of up to $275,000. A claimant can reach 121 points if the maximum points are achieved for Acts, Harms, Aggravating Factors, and Loss of Opportunity.
• The monetary value attributed to points grows as they rise. As more points are provided to a claimant, each point increases in monetary value.
• e.g. For a claimant with relatively few points for their claim, an additional 5 points translates to about $5,000; whereas for a claimant with relatively many points for their claim, an additional 5 points may translate to about $15,000.
• However, the framework is designed to ensure compensation is assessed on a case by case basis, whereby the adjudicator considers the impact of an abuse event on the claimant when deciding the award.

Points for proven acts of abuse

Points for acts of abuse are provided as follows:

• Points for sexual abuse acts range from 5-60.
• Points for physical abuse acts range from 11-25.
• Points for other wrongful acts range from 5-25.
• The maximum amount of points available for acts is 60. The most serious act or acts of proven abuse, whether physical or sexual, determines the single range within which points for all abusive acts suffered at IRS are to be assigned.⁴

Points for effects of the abuse

If one of the above Acts is proven, a claimant is eligible for compensation points for the following claims:

• Harms that resulted from proven acts of abuse.
• Points range from 1-25.
• In an other wrongful act claim, compensation is only awarded if the act caused serious psychological harms at the H3 level or above. In these claims, Harm points range from 11-25.
• Aggravating factors that made the abuse worse.
• Points are provided by adding 5-15% of the points for the Act and Harm combined to the award, which can total up to 13 points.
• Loss of opportunity or actual income loss:
• Loss of opportunity (LOO), where claimants struggle or have lost their ability to obtain or retain employment, or pursue education, because of the proven abuse.
• Points range from 1-25.
• The maximum award for claims involving Acts, Harms, Aggravating Factors, and Loss of Opportunity is $275,000.
• Actual income loss (AIL), where claimants prove the specific loss of income as a result of a proven claim of abuse.
• Up to $250,000 in actual income loss can be awarded.
• The maximum award for claims with proven Acts, Harms, Aggravating Factors and AIL is $430,000.
• A claimant can choose to seek compensation for either LOO or AIL, but not both.
• The maximum award for claims without LOO or AIL is $180,000.
• The maximum award for claims with LOO is $275,000.
• The maximum award for claims with AIL is $430,000.
• Legal fees of 15% are added on top of these amounts.

Other amounts

In addition to awards based on points, claimants may receive two other amounts:

• Future care awards, such as treatment or counseling services.
• For general care the maximum amount is $10,000; if psychiatric treatment is required, the maximum amount is $15,000.
• Contribution for legal fees of represented claimants.
• If the claimant is represented by a lawyer, Canada will pay a contribution towards the claimant’s legal fees of 15% of the total compensation award.⁵
• Canada will also pay the reasonable and necessary disbursements (out-of-pocket costs).

Maximum compensation awards

Overall, including future care awards and legal fees, the maximum amounts that can be awarded to claimants are:

• $290,000 for claims without AIL. This includes $275,000 for 121-123 points and $15,000 for future care. A contribution of $43,500 towards the claimant’s legal fees could be added to the compensation award.
• $445,000 for claims with AIL. This includes $180,000 for 91-98 points, $15,000 for future care, and $250,000 for AIL. A contribution of $66,750 towards the claimant’s legal fees could be added to the compensation award.

Resolution processes within the IAP

The compensation framework is applied in two different IAP resolution tracks:

• The standard track resolves most claims. 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.
• The complex track resolves claims of AIL and OWA. It addresses claims in accordance with the same standards a court would apply in like matters.

Once Adjudicators have held a hearing in either of the resolution tracks, reviewing testimony from claimants and potentially witnesses and experts, the Adjudicator writes a decision. In the decision the Adjudicator explains the calculation of points and the compensation award.

Access to the courts

At the request of a claimant, the Chief Adjudicator may grant access to the courts where he or she is satisfied that the claim is one where:

• The actual income loss or loss of opportunity may exceed the maximum permitted by the IAP;
• The claimant suffered catastrophic physical harms such that compensation available through the courts may exceed the maximum permitted by the IAP; or,
• In an OWA claim, the evidence required to address the alleged harms is so complex and extensive that recourse to the courts is more appropriate.

If the Chief Adjudicator grants access to the courts, the claim leaves the IAP and is dealt with by the courts according to their own standards, rules, and processes.

 

 

---