Deceased residential school survivor's compensation claim overturned for lack of signature

The body overseeing the compensation process for the Indian Residential Schools Settlement Agreement has overturned an award to the family of a deceased residential school survivor because the claim application did not have his signature.

The Indian Residential Schools Adjudication Secretariat oversees the Independent Assessment Process (IAP) for compensation for specific claims of physical abuse, sexual abuse, and other wrongful acts that caused serious psychological harms to former students.

On March 13, 2018, IAP adjudicator Cheryl Macdonald awarded compensation of $27,222 to a claimant for forced participation in at least two incidents of simulated intercourse during his time at a Quebec residential school.

The claimant, now deceased, had opened up about sexual abuses he experienced during his school years at a healing camp. The allegations were documented and recorded by a note-taker.

"This is my greatest pain. At night I was coerced to make sexual acts," the minutes stated.

An eyewitness also corroborated the abuse with sworn evidence.

Overturned on a review

The claimant's family requested a review of Macdonald's decision, feeling that the compensation was too low.

Instead, deputy chief adjudicator Wes Marsden overturned the decision in July because the claimant had not signed an IAP application.

"The initial adjudicator did not error when considering the quantum of compensation. However, I do find that the initial adjudicator misapplied the IAP Model by awarding compensation when there was no signed IAP application from the claimant," wrote Marsden in his decision.

"It's just shocking," said David Schulze, a Montreal-based lawyer representing the claimant and his family.

"This is from the government that's always talking about reconciliation. Well, where is the reconciliation for my client?"

When the claimant's family filed the application in 2012, a letter from the secretariat stated that it would process IAP claims on behalf of deceased former students, as long as the claimant had still been alive on May 30, 2005. 

Secretariat spokesman Michael Tansey acknowledged there were conflicting decisions on the issue of whether a family member could sign an application on behalf of a deceased former student.

"The chief adjudicator resolved these conflicting IAP decisions in two estate re-review decisions, ruling that claims that are signed by estate reps versus the residential school survivor himself or herself, are generally not eligible for admission to the IAP," said Tansey.

"There may be exceptions in cases where the deceased claimant had signed an application in the Alternate Dispute Resolution (ADR) process that preceded the IAP, or testified in court proceedings."

The estate re-review decisions were issued March 27 and April 10, 2018.

Notice to counsel issued

Because there are some estate claims still being processed, the chief adjudicator issued a Notice to Counsel on Sept. 6, 2018 of the re-review decisions' requirement to have the claimant's signature.

For Schulze, the change highlights serious issues with the IAP as it winds down. The deadline for IAP applications was Sept. 19, 2012. More than 26,000 hearings have been held since 2008 and there are 161 claims remaining in progress.

"You can have a widow and you can have adult children who have sworn testimony by a witness to their late father's sexual abuse and it doesn't matter because he died after the cut-off date but he didn't live long enough to sign the claim forms," he said.

"They don't care about about compensation for people who were victims. They care about getting it over with and if a few people get denied compensation along the way, it'll help speed things up. What other conclusion can you draw from those kind of arguments?"

The office of the Minister of Crown-Indigenous Relations said the secretariat is an arms-length decision-making body that operates independently from the government of Canada.

"The chief adjudicator of the Independent Assessment Process (IAP) is an independent, court-appointed official who directs the work of the Adjudication Secretariat, and reports directly to the courts that supervise the settlement agreement," said spokesperson Jane Deeks. 

"Decisions relating to claims made under the Independent Assessment Process rest with the chief adjudicator."