This section of the IRSAS website provides links to selected court decisions related to the Independent Assessment Process. Numerous other decisions are available on other websites, including CanLII, the Official Court Website of the Indian Residential Schools Settlement and the IAP Decision Database for counsel who are active in the IAP.
IAP counsel who wish to obtain access to the decisions database should send a new account request with their name, email address, and phone number by email to IAPS_Chiefadjudicatorsoffice@irsad-sapi.gc.ca.
Links are provided to the original court decisions, on external websites. In most cases, decisions are available in English only.
The Independent Assessment Process was established by the Indian Residential Schools Settlement Agreement, a national class action settlement reached in 2006, and approved by the Courts in 2007.
The implementation and approval orders were made in early 2007 by Courts in nine jurisdictions to support implementation of the IAP and resolve issues identified by the supervising courts. All of the implementation orders are available on the Official Court Website of the Indian Residential Schools Settlement
The Approval Order gives effect to the Settlement Agreement.
Several additional court orders have been made to help address issues arising in the IAP, among them:
The Directives section contains directives, guidance papers and practice directions issued by the Oversight Committee and the Chief Adjudicator.
The following are the Indian residential schools that the IAP will consider for your claim.
In addition to these schools, decisions on four applications to add schools to the list under Article 12 of the Indian Residential Schools Settlement Agreement remain pending before the supervising courts or Courts of Appeal.
Click the province name below to show a list of schools for that province.
The Chief Adjudicator has taken action to protect the confidentiality of documents and testimony provided in the Independent Assessment Process. For more information on this case, click here.
Justices Strathy C.J.O., Sharpe and MacFarland JJ.A., Ontario Court of Appeal, Fontaine v Canada (Attorney General), 2016 ONCA 241, April 4, 2016
The majority decision of the Court of Appeal upheld the supervising judge's order that the IAP documents should be destroyed 15 years after the end of a claim, unless the claimant has chosen to have them transferred to the National Centre for Truth and Reconciliation. The Court of Appeal ordered that the notice program be conducted by the Chief Adjudicator, and that the order also include the Alternative Dispute Resolution process that preceded the IAP.
The Government of Canada has applied for leave to appeal the decision of the Ontario Court of Appeal to the Supreme Court of Canada.
Justice Perell, J., Ontario Superior Court of Justice, Fontaine v Canada (Attorney General), 2014 ONSC 4585, August 14, 2014
The supervising judge ordered that IAP records should be destroyed 15 years after the end of a claim, unless the claimant has chosen to have them transferred to the National Centre for Truth and Reconciliation. The court ordered that a notice program be conducted to advise survivors of their choice.
The Honourable Mr. Justice Donald, The Honourable Madam Justice Saunders, The Honourable Mr. Justice Frankel, Court of Appeal for British Columbia, Fontaine v Canada (Attorney General), 2008 BCCA 329, August 21, 2008
The court held that a direction to pay settlement funds to a third-party lender was contrary to the Settlement Agreement and the Financial Administration Act.
Issues in this case involved the quality of legal representation provided to clients, the facilitation of loans with third parties, and the use of a third-party agency to recruit clients and complete application forms.
The Honourable Madam Justice B.J. Brown, Supreme Court of British Columbia, Fontaine v. Canada (Attorney General), 2012 BCSC 839, June 5, 2012
Issues in this case involved alleged harassment of claimants by a form-filler employed by Bronstein's law firm, the provision or facilitation of loans to claimants, as well as the quality of legal services provided.
The Honourable Madam Justice B.J. Brown, Supreme Court of British Columbia, Fontaine v Canada (Attorney General), 2015 BCSC 1968, October 28, 2015.
The court directed that Bronstein reimburse Canada for the amount of $1,250,000.00 as special costs for this matter.
The Honourable Madam Justice B.J. Brown, Supreme Court of British Columbia, Fontaine v Canada (Attorney General), 2015 BCSC 717, May 1, 2015
The court held that Bronstein's conduct fell below the standard expected of legal professionals representing clients in the IAP, but that Bronstein's conduct does not require that he be removed from participation in the IAP. The court required Bronstein to continue participating under supervision, and to pay the reasonable costs of the Monitor's investigation.
The Honourable Madam Justice B.J. Brown, Supreme Court of British Columbia, Fontaine v Canada (Attorney General), 2016 BCSC 595, April 5, 2016.
The court upheld the Chief Adjudicator's practice of allowing only the claimant's current lawyer to participate in the legal fee review process.
Justice Schulman, Court of Queen's Bench Manitoba, Fontaine et al. v. Canada (Attorney General), 2014 MBQB 113, June 4, 2014
Justice J. Perell, Fontaine v Canada (Attorney General), 2016 ONSC 5359, August 25, 2016.
Justice Perell had previously ordered an investigation regarding Mr. Keshen by the Court Monitor, after certain issues regarding interest-free loans to clients and facilitating loans from third-party settlement lenders were brought forward on behalf of the Chief Adjudicator. The Chief Adjudicator did not participate in the RFD after the initial order directing the investigation.
Fontaine et al v AG Canada et al, 2015 MBQB 158, court of Queen's Bench of Manitoba, October 7, 2015. This decision addresses the Chief Adjudicator's Guidelines for legal fees. The court held that the Guidelines are not binding and create no enforceable rights. The court dismissed the RFD seeking to overturn the Chief Adjudicator's decision on legal fees.
The Honourable Madam Justice B.J. Brown, Supreme Court of British Columbia, Fontaine v Canada (Attorney General), 2016 BCSC 1306, July 13, 2016.
In this case, Merchant Law Group received IAP settlement proceeds in trust, but before the claimant received her award, the firm deducted $21,300 it claimed she owed for unrelated legal matters, including her son's criminal matters.
The court found this to be an impermissible assignment of IAP funds and ordered Merchant Law Group to pay forthwith to the claimant the amount it had withheld, with interest.
The court found that the diversion of funds offends both Article 18.01 of the Settlement Agreement (which prohibits the assignment of both Common Experience payments and IAP awards) and section 67 of the Financial Administration Act (which prohibits the assignment of Crown debts).
The court agreed with the Chief Adjudicator that the purpose of Article 18.01 is to protect vulnerable class members. While the funds were still in the lawyer's trust account, the claimant remained in a vulnerable position and was open to being threatened or pressured (as evidenced by the letter from counsel to the claimant) into "consenting" to the redirection of funds.
The court also found that the direction to pay violates s. 67 of the Financial Administration Act. The court agreed with the Court Monitor, that-contrary to the Merchant position-until the settlement proceeds are in the claimant's hands, the Crown debt has not been paid.
The court noted that its conclusion is consistent with the Chief Adjudicator's Expectations of Legal Practice in the IAP, setting out what claimants can expect their lawyer to do upon receipt of IAP funds.
For more information on working with a lawyer, see:
For information on resolving problems with a lawyer, see:
Justice Robert J. Sharpe; Chief Justice G.R. Strathy and Associate Chief Justice Alexandra Hoy concurring, Court of Appeal for Ontario, Fontaine v Canada (Attorney General), 2017 ONCA 26, January 16, 2017.
This decision addresses when and how the courts should interfere with decisions of IAP adjudicators. The initial adjudicator had denied compensation to the claimant on the grounds that the abuse he suffered had taken place after the school closed. The review and re-review adjudicators upheld this decision. The claimant applied to the Eastern Administrative Judge to overturn the decision. When preparing for the hearing, Canada found documents that could have affected the claim.
The administrative judge overturned the IAP decisions, declared that the claimant was entitled to compensation, and undertook to decide the amount of compensation and costs. Canada appealed. (Justice J. Perell, Ontario Superior Court of Justice, Fontaine v Canada (Attorney General), 2016 ONSC 4328, July 5, 2016)
The Ontario Court of Appeal followed the Schachter decision (Schachter – Access to the courts to review legal fee decisions) holding that there are "strict limits on the scope for judicial intervention" in IAP decisions. Judicial recourse is available only in "very exceptional circumstances” where there has been a failure to comply with, or enforce, the provisions of the Settlement Agreement. The Court noted that the Settlement Agreement “provides that claims for compensation are to be resolved not by courts, but by trained and specialized adjudicators operating under the carefully designed IAP model.” Allowing appeals or judicial review “would seriously compromise the finality of the IAP and fail to pay appropriate heed to the distinctive nature of the IAP and the expertise of IAP adjudicators."
Justice B.J. Brown, Supreme Court of British Columbia, Fontaine v Canada (Attorney General), 2016 BCSC 2218, November 29, 2016.
This decision establishes deadlines for claimants who wish to have a Court review a final (re-review) decision in the Independent Assessment Process (IAP).
Justice Brown's decision set the following timelines for requesting such a review:
Five claimants had asked the Court to overturn re-review decisions denying them compensation in the IAP. Justice Brown denied all five requests, holding that there is no right to appeal an IAP decision to the courts, but only a “limited right of judicial recourse” where the IAP decision is “exceptionally unreasonable” or exhibits a “patent disregard” for the compensation rules.
Note that appeals have been filed by two of the five claimants affected by this decision. A date for the appeal hearing has not yet been set.
Justice Rouleau; Justices Rosenberg and Juriansz concurring, Court of Appeal for Ontario, Fontaine et al v Duboff Edwards Haight & Schachter, 2012 ONCA 471, July 4, 2012.
This decision addresses the circumstances in which decisions of an IAP adjudicator may be reviewed by the courts. The court held that the right to seek judicial recourse is limited to very exceptional circumstances, where the final decision of the Chief Adjudicator reflects a failure to comply with the terms of the Settlement Agreement or the implementation orders. The court upheld the Chief Adjudicator's legal fee appeal decision.
Justice J. Edmond, Court of Queen's Bench Manitoba, Fontaine v Canada (Attorney General), 2016 MBQB 159, August 3, 2016
This decision addresses the interpretation of one of the definitions of sexual assault in the IAP, the category of "any touching of a student, including touching with an object, by an adult employee or other adult lawfully on the premises which exceeds recognized parental contact and violates the sexual integrity of the student." The court held that the claimant does not have to prove that a sexual intent or sexual purpose is necessary for compensation in this category. The court returned the claim to an adjudicator for reconsideration. Please note that Canada has appealed this decision to the Manitoba Court of Appeal. The appeal decision will be posted once it is available.
Justice J. Perell, Ontario Superior Court of Justice, Fontaine v Canada (Attorney General), 2016 ONSC 4328, July 5, 2016.
The court held (at para 63) that a claimant may apply to the courts only after exhausting the IAP's review and re-review process. The court adjourned the Request for Direction generally, to be brought on after completion of the re-review of the claimant's claim.
Madam Justice R. E. Nation, Court of Queen's Bench of Alberta, Fontaine v Canada (Attorney General), 2015 ABQB 225, April 8, 2015
This decision addresses the responsibility of adjudicators to determine when an institution listed in the Settlement Agreement ceased to operate as an Indian Residential School. The court held that adjudicators must have the jurisdiction to look at the evidence and determine whether an institution was operating as an Indian Residential School during the time when the claimant in question seeks compensation. The court also concluded that Grouard was not an Indian Residential School beyond December 1957. The court upheld the adjudicator's decision.
Justice Schulman, Court of Queen's Bench Manitoba, Fontaine et al v Canada (Attorney General) et al, 2014 MBQB 200, October 9, 2014
This decision addresses the eligibility of claimants to receive compensation for abuse suffered while employed at the school. The court held that the claimant, who was a class member because she had lived at the school as a student, was entitled to compensation for abuse suffered while employed and living at the school. The court overturned the re-review decision and reinstated the review decision.
Implementation of the IAP is supervised by the courts. In certain circumstances, a party dissatisfied with an IAP decision may be able to apply to have it reviewed by the supervising court.
Before you can apply to court, you must exhaust all review rights within the IAP - first and second review (re-review).
The IAP involves complex legal concepts and processes. This is why every party who signed the Settlement Agreement encourages claimants to hire a lawyer to help with an IAP claim.
You should consult a lawyer if you are considering applying to the courts. A recent decision in the Ontario Court of Appeal noted that access to the Courts for a review of an IAP decision will only be granted in exceptional circumstances.
The Indian Residential Schools Adjudication Secretariat cannot provide legal advice.
Self-represented claimants who wish to seek judicial review of an IAP decision should consult with their Claimant Support Officer (CSO), who can provide a list of lawyers accepting referrals for IAP claimants. You can reach your CSO by calling the IAP Info Line at 1-877-635-2648.
The Court Administration Protocol sets out the procedure for bringing a Request for Directions to the court.
The Request for Direction Service Protocol sets out how a Request for Direction should be filed with the court, and who should be notified.
All questions regarding applications to the court should be directed to the Court Counsel, Brian Gover :
Brian Gover, Court Counsel
TD North Tower
77 King Street West, Suite 4130
PO Box 140, Toronto-Dominion Centre
Toronto, ON M5K 1H1