What is the Independent Assessment Process (IAP)?

The Independent Assessment Process (IAP) is one element of the Indian Residential Schools Settlement Agreement, which is the largest class action settlement in Canadian history.

The IAP is an out of court, alternative dispute resolution process that resolves claims of abuse suffered at an Indian Residential School (IRS). Former students of IRS who experienced sexual or physical abuse may be eligible for compensation through the IAP.

IAP applications will be accepted for a period of 5 years from the implementation date of September 19, 2007. The IAP is the only way a former student may pursue a claim of sexual or serious physical abuse, unless he or she has opted out of the Settlement Agreement. Compensation through the IAP will be paid at 100% by the Government in all cases, following validation of the claim by an independent Adjudicator.

Who is eligible for the IAP?

The IAP is designed to compensate individual claims of sexual or serious physical abuse committed by adults or students. Claimants who suffered the types of abuse that the IAP compensates are eligible to the IAP if they lived at an approved residential school, or they were a student at an approved residential school, or they were under the age of 21 and invited on school premises to take part in an authorized school activity when the abuse happened.

Which schools are covered by the Settlement Agreement?

The Indian Residential Schools Settlement Agreement contains a list of over 130 residential schools across Canada. Compensation through IAP is available for people who attended schools covered by the Settlement Agreement.

If a claim involves a school that is not on this list, the claimant must take steps to have the school added to the list before the IAP will consider the claim.

How does the IAP work?

The IAP is a non-adversarial adjudicative process for the resolution of individual abuse claims. The claimant completes a detailed application form, which is reviewed for eligibility. If the claim is admitted, the claimant submits documents in support of the claim, and Canada submits its research about the people named in the claim. Alleged perpetrators are contacted and advised of the allegations. They have the right to provide a statement and it they wish, to testify. The claim can then be resolved through negotiation, or the claimant attends a private hearing and answers questions from a neutral Adjudicator. In some cases, the claimant is asked to take part in a medical or psychological assessment. Usually within 30 days after the hearing, if all of the required materials are available and no expert assessments are required, the Adjudicator issues a binding decision.

Hire a Lawyer

It is strongly recommended that all former students hire a lawyer to help them through the IAP. The IAP is complex and involves legal concepts and processes.

If you hire a lawyer and are awarded compensation, Canada will add an additional 15% to your compensation to help pay your legal fees. You may ask the Adjudicator to review your legal fees to ensure that they do not exceed 30% of the compensation award.

What is the role of the Adjudicator?

Under the IAP model, all Adjudicators are lawyers, selected by an Oversight Committee and are under the direction of the Chief Adjudicator. Adjudicators have the responsibility to review claims and preside over hearings. The role of an Adjudicator is to assess, in an objective and impartial manner, the allegations set out in a claim and determine at the end of the hearing whether the claim is compensable within the IAP and, if so, what the compensation should be. Adjudicators all have formal training and experience.

The Adjudicator’s job is to establish a comfortable, non-threatening environment in which claimants, and other witnesses, including alleged perpetrators, can safely be heard. During the hearing process an Adjudicator works to ensure that there is a relationship of trust that is created to make it possible to reveal what may be emotionally charged and often painful disclosures. The Adjudicators are also trained to facilitate opportunities for healing and reconciliation that may occur during the course of the hearing.

How will an Adjudicator determine the validity of a claim?

There are certain documents that are required for each claim, including research as to records of attendance of the student, the alleged abuser(s) and the school history. Medical and financial records are usually supplied. These provide important background with which to assist the claimant in sharing their experiences – they also provide the basis for Adjudicators to test the reliability of testimony. Oral testimony, however, usually forms the main evidentiary basis for the claim. Witnesses can be called by either party to support or refute allegations.

How will financial compensation be decided?

Financial compensation is decided by the Adjudicator, based on a compensation framework developed by the parties to the Settlement Agreement and approved by the courts. The framework is designed to promote 3 principles: 1. consistency at the national level; 2. transparency of available compensation levels for different types of abuse and harms; and 3. fairness in recognizing the abuse and harms caused and ensuring compensation is provided at comparable levels to what the courts would award. The framework allows for a range of points for various types of proven abuse, harms flowing from this abuse, aggravating factors, and loss of opportunity. These points then translate into dollar awards. (link to Compensation Framework)

Who determines if a claim meets the criteria to be admitted into the IAP model?

The Indian Residential Schools Adjudication Secretariat is responsible for determining whether applications fall within the terms of the IAP. Where an application fails to raise a claim which falls within the IAP model, the Secretariat shall advise the claimant, with reasons, and provide them with the opportunity to provide additional information or make a further application. On the request of the claimant, a decision to refuse to admit a claim into the IAP will be reviewed by the Chief Adjudicator, whose decision will be final.

What are some of the steps taken to ensure the independence of the  Secretariat?

Pursuant to the conditions set out in the Indian Residential Schools Settlement Agreement, the Adjudication Secretariat is meant to operate as independently and as impartially as possible with respect to the parties to the Settlement Agreement.

What is the difference between CEP and IAP?

The Common Experience Payment (CEP) is a lump-sum payment that recognizes the experience of residing at an Indian Residential School(s) and its impacts. All former students who resided at a recognized Indian Residential School(s) and who were alive on May 30, 2005 are eligible for the Common Experience Payment. Eligibility for CEP is specific to residency at a recognized Indian Residential School (IRS) and no proof of harm is necessary.

The IAP provides additional compensation to individuals who have continuing claims, arising from or connected to the operation of an IRS, whether or not occurring on the premises or during the school year, committed by adult employees of the government or a church entity which operated the IRS in question, or other adults lawfully on the premises, as set out in Schedule “D” of the Settlement Agreement. Continuing claims are claims of sexual or serious physical abuse. Eligibility for IAP includes former students that resided at a recognized IRS, or where the claimant was under the age of 21 and was permitted by an adult employee of the IRS to be on the premises to take part in authorized school activities when the abuse happened. Claims that fall within the IAP model will be compensated subject to validation by an independent Adjudicator.

How do I make a claim in the Independent Assessment Process?

How do I file an IAP claim on behalf of a deceased former Indian Residential School student?

The Indian Residential Schools Adjudication Secretariat will receive and process claims on behalf of a deceased former student who:

• resided at an Indian Residential School prior to December 31, 1997
• was alive on May 30, 2005 and
• did not opt out of the Settlement Agreement.

Unfortunately, most of the time when a claimant has already passed on, it will be very difficult for the claim to proceed. It is very important to get legal advice. Claims submitted on behalf of the estate of a deceased claimant must be submitted by a duly appointed executor or the estate’s legal counsel.

Are there unique challenges in bringing a claim forward on behalf of a deceased claimant?

Yes, there could be several potential difficulties in pursuing a claim on behalf of a deceased former student:

• The IAP requires legal proof that you are authorized to act on behalf of the former student's estate.
• The IAP requires claimants to appear before an adjudicator to give evidence and answer questions. The adjudicator may not be able to award compensation if the former student did not give sworn evidence before they died, unless other witnesses are available to provide evidence.
• Compensation cannot be awarded for harm or loss of opportunity at levels 4 or 5, or for actual income loss, unless the claimant attended an expert assessment ordered by an adjudicator.

Again, if you are considering filing this type of IAP claim, we strongly recommend you consult a lawyer.

Can I file a claim on behalf of a former student who passed away prior to May 30, 2005?

The Settlement Agreement says that the IAP applies to former students who were alive on May 30, 2005. It is recommended you consult with a lawyer to see if other options exist regarding this type of claim.