The adjudicator’s decision

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The adjudicator at your hearing is responsible for writing the decision for your claim. The adjudicator’s decision will indicate if you will receive compensation, and include reasons for the decision. Every effort is being made to meet the following deadlines:

  • Standard track claims: 30 days after final submissions
  • Complex track claims: 45 days after final submissions
  • Short-form decisions (if your lawyer opted for this): two weeks after final submissions

The decision will be sent to the Government of Canada and to you. Both of you will have 30 days from the date written on the decision to decide whether to accept the decision or request a review. The decision will have information on how to accept the award and how to request a review. Both parties have to accept the decision before the process can begin for you to receive your compensation award. If you accept the decision, but the Government of Canada requests a review, then a review will occur.

Decisions should be examined carefully so you understand why the adjudicator came to that decision. If you have questions, talk to your lawyer or your Claimant Support Officer. Click here to see a template of an adjudicator’s decision.

The Settlement Agreement contains a compensation grid in schedule D that contains the rules for calculating compensation awards. If you have proven your case, these rules tell the adjudicator how to award compensation, including dollar amounts. These rules ensure fairness and transparency.

IAP compensation is based on points. The more points a claim receives, the more compensation will be awarded (see section II of Schedule D of the Indian Residential Schools Settlement Agreement, The Compensation Rules. Adjudicators have the authority to determine how many points a claim receives for the following categories:

  • Acts proven. The adjudicator will assign points for the most serious abuse suffered by the claimant
  • Consequential harms. The adjudicator will assign points for the psychological harms suffered by the claimant as a result of the abuse
  • Aggravating factors. The adjudicator will assign points for any factors that made the abuse worse
  • Future care. The adjudicator will not assign points for this category, but a monetary value. For more information on Future care plans, click here.
  • Loss of opportunity. The adjudicator will assign points for the claimant’s loss of opportunity.

The table on page 6 of Schedule D lists the amount of money that can be awarded based on the total number of points assigned to your claim.

To help you understand how the schedule D compensation grid works, here are some examples. They show how a compensation award could be calculated and how the lawyer’s fees would be paid.

Example #1

An adjudicator gives an award at the SL3 level with harms at H2, aggravating factors of 12%, future care of $10,000, and loss of opportunity at L1.

  • Acts proven at SL3 – range is 26 to 35 points; adjudicator awards 30 points
  • Consequential harms at H2 – range is 6 to 10 points; adjudicator awards 10 points
  • Aggravating factors at 12% – total points so far is 40; 12% of 40 is 4.8, which is rounded up to 5 points
  • Loss of opportunity at L1 – range is 1 to 5 points; adjudicator awards 4 points
  • Future care – adjudicator grants $10,000 based on the future care plan

The total is 49 points. Based on these points, the adjudicator can award anywhere from $51,000 to $65,000 and has the authority to decide how much exactly to award. In this instance, the adjudicator awards $62,000. The total compensation in this example would be $72,000 ($62,000 for the points, plus $10,000 for future care).

This claimant’s lawyer charges 15% of the award. The claimant lives in Saskatchewan, where the tax rate is 10% (5% GST, 5% PST). The claimant is responsible for paying:

  • Legal fees of $0. The total legal fee bill is $10,800 ($72,000 x 15% = $10,800). In this case, the Government of Canada pays the total bill because the lawyer only charges 15% and there is no charge to the claimant.
  • Tax ($2,475 in GST and PST). In this case, the claimant has to pay $1,080 in taxes ($10,800 x 10% = $1,080).

After paying the taxes on the legal fees, the total amount the claimant receives is $70,920 ($72,000 - $1,080 = $70,920).

Example #2

An adjudicator gives an award at the SL5 level with harms at H4, aggravating factors of 8%, future care of $5,000, and loss of opportunity at L3.

  • Acts proven at SL5 – range is 45 to 60 points; adjudicator awards 54 points
  • Consequential harms at H4 – range is 16 to 19 points; adjudicator awards 19 points
  • Aggravating factors at 8% - total points so far is 73; 8% of 73 is 5.84, rounded up to 6 points
  • Loss of opportunity at L3 – range is 11 to 15 points; adjudicator awards 13 points
  • Future care – adjudicator grants $5,000 based on the future care plan

The total is 92 points. Based on these points, the adjudicator can award anywhere from $151,000 to $180,000 and has the authority to decide how much exactly to award. In this instance, the adjudicator awards $160,000. The total compensation in this example would be $165,000 ($160,000 for the points, plus $5,000 for future care).

This claimant’s lawyer charges 25% of the award. The claimant lives in British Columbia, where the tax rate is 12% (5% GST, 7% PST). The claimant is responsible for paying:

  • Legal fees of $16,500. The total legal fee bill is $41,250 ($165,000 x 25% = $41,250). However, the Government of Canada pays the legal fees up to 15% of the award and the claimant is responsible for paying anything above. In this case, the claimant is responsible for 10% of the legal fees which equals $16,500 ($165,000 x 10% = $16,500).
  • Tax ($4,950 in GST and PST). In this case, the claimant has to pay $4,950 in taxes ($41,250 x 12% = $4,950).

After paying the additional lawyer fees and the taxes on all the lawyer fees, the total amount the claimant receives is $162,525 ($165,000 – $16,500 - $4,950 = $143,550).

Remember, if you have a lawyer you will receive a form that you can send in to ask the adjudicator to review your legal fees.

Claimants can contact the settlement inquiry line for updates on their compensation toll-free:

  • For claimants in British Columbia, Alberta and the North: 1-877-236-2219
  • For claimants everywhere else: 1-877-307-9089

If both parties accept the decision and the decision involves an award of compensation, then the “compensation process” begins, that is, the final steps for you to receive your compensation award.

The Government of Canada is the party responsible for compensation and will be notified once a decision has been accepted by both parties. The Government of Canada will then send an award package to you, or your lawyer if you have one. The package includes:

  • a number of legal documents that need to be signed with the assistance of a lawyer
  • information on how to find a lawyer

A lawyer is absolutely required at this stage. The Government of Canada will pay the lawyer for these services. When the government receives the completed legal documents, it will begin processing the compensation cheque, which will be sent to your lawyer. The process takes four to six weeks.

INDIAN RESIDENTIAL SCHOOLS RESOLUTION CANADA

INDEPENDENT ASSESSMENT PROCESS

REPORT OF DECISION-MAKER

A. Summary

1. Allegations

2. Conclusions

  • Here the adjudicator will provide a summary on the abuses that were discussed at the hearing.
  • The adjudicator will also provide a summary of what their conclusions are – has the claimant proven the abuse and does the claimant receive compensation?

B. Decision

  • Here the adjudicator will either state how much compensation the claimant is to receive or that the claim was not proven and no compensation is awarded.

C. Analysis

1. Background

  • Here the adjudicator will provide background information on the claimant.
  • The claimant’s family life before they attended residential school will be discussed as well as the circumstances on how they came to attend residential school.

2. Findings

a. Credibility

  • It is an adjudicator’s duty to consider all of the evidence and decide whether the claimant has proven that the alleged abuse happened.
  • Here the adjudicator will discuss the claimant’s testimony and whether it was credible and reliable.

b. Acts Proven

  • Here the adjudicator will list the abuse acts that the claimant discussed at the hearing. The adjudicator will provide their findings regarding if the claimant has proven them or not.
  • If compensation is awarded, the adjudicator will be very detailed about the abuse and will sometimes use quotes that were said by the claimant during the hearing. The adjudicator will also quote from the Settlement Agreement, which is the document that tells adjudicators how claims are proven. The adjudicator will then award points for the most serious abuse act proven.
  • If no compensation is awarded, then there is no need to discuss sections c to f below.

c. Harms

  • If compensation is awarded, the adjudicator will list the harms that the claimant discussed at the hearing.
  • The adjudicator will write if the harms have been proven or not and if the harms are linked to the proven abuse acts. The adjudicator will be detailed about the harms and will sometimes use quotes that were said by the claimant during the hearing. The adjudicator will also quote from schedule D, which is the document that tells adjudicators how claims are proven.
  • The adjudicator will then award points based on the harms proven.

d. Aggravating Factors

  • Aggravating factors are circumstances that made the proven abuse worse – in other words, it aggravated the abuse.
  • If compensation is awarded, here the adjudicator will list which factors made the abuse worse for the claimant. The adjudicator will then award a percentage, depending on the number and seriousness of the aggravating factors.

e. Loss of Opportunity

  • If compensation is awarded, here the adjudicator will state if the claimant has suffered from loss of opportunity.
  • The adjudicator will be detailed about the reasons why there is a loss of opportunity and will discuss the claimant’s work and education history. They may use quotes that were said by the claimant during the hearing to support their decision. They may also quote from the Settlement Agreement, which is the document that tells adjudicators how claims are proven.
  • If successful, the adjudicator will award points.

f. Future Care

  • Here the adjudicator will discuss the claimant’s future care plan and will state how much of it to award – either all of it, some of it, or none of it. The adjudicator will list the reasons why they came to that decision.

D. Calculation of Points

Compensation CategoryLevel of CompensationPointsDollar Award
1. Acts Proven[SL 5 – SL 1, PL, or OWA] ----
2. Harms[H5 – H1] ----
3. Aggravating Factors[Acts + Harms x __% = points] ----
4. Loss of Opportunity[L5 – L1] ----
Sub-total---------- $
5. Future Care--------------$
Total, including Future Care:--------------$
  • Here the adjudicator will summarize the number of points awarded for the claim. The total points will then equal a dollar amount, at the adjudicator’s discretion.
  • The chart that shows the compensation amounts based on the total amount of points can be viewed in Schedule D of the Settlement Agreement.

E. Conclusion

  • The adjudicator will write a brief concluding paragraph regarding the claim.
  • Claimants can also request a letter of apology from the Government of Canada. Here the adjudicator will state if the claimant has requested one.

SIGNED AT [Town and Province], on [date adjudicator submitted decision]

_____________________________________________

[Adjudicator Name]

Independent Assessment Process