The additional Assessors have been appointed to help the claims process move more quickly by conducting interviews and making the related final decision in those claims. One of the most time-consuming aspects of the claims process is interviewing claimants located across Canada.
The parties initially estimated that there would be approximately 1,000 claimants under the Merlo Davidson Settlement Agreement. At the end of the extended claims period the Office of the Independent Assessor had received over 3,100 claims. The claims process, and staffing of the Office, was based on the original estimate. With over three times as many claims as anticipated, the Independent Assessor determined that he required assistance to ensure that the claims process proceeded as expeditiously as possible. The parties agreed to the appointments of the Hon. Lynn Smith and the Hon. Marion Allan and they were approved by the Federal Court, as required by Article 6.03 of the Settlement Agreement.
No. The Honourable Michel Bastarache, C.C., Q.C. remains the Independent Assessor responsible for the administration of the claims process and for the assessment of claims. He will continue to conduct the paper review of all claim files and will identify those that meet the criteria for an interview. He will also continue to conduct interviews across Canada.
Questions regarding claim process
Claims are being assigned in chronological order, unless there has been a request to expedite the claim that is supported by medical information. Claims from last week of January 2018 are currently being assigned to lawyers for preliminary review. You will be notified by email when your file is assigned.
All claimants, in addition to their completed and witnessed claim form and declaration, must provide: a copy of government issued photo identification; a signed and witnessed Certification of No Prior Compensation and a Direction and Authorization to Disclose Information.
If you have not included all these documents in your claim package you should upload them to your secure online account or mail them to our Office as soon as possible.
When your file is assigned, the reviewing lawyer will verify if all the necessary documents are on file. If they are not all there, he or she will contact you and ask you to provide the missing documentation. The review of your file will only begin once all of the mandatory documents have been received.
The online system is case sensitive. Please ensure that you are using the password in the same configuration(same letters capitalized or in lower case) that you entered at the outset. If this is not the problem and the password reset function is not working, please contact our office at: email@example.com
Once your claim has been assigned for review, the reviewing lawyer will review the file for completeness, ensure that you are a primary class member and that you have not opted out or received prior compensation. He or she will send you an email confirming that your file has been assigned. The file is then sent on to the Independent Assessor who will review your claim form and make an assessment based on the incidents and information that you have provided.
Claims may be expedited where medical concerns require a faster resolution of the claim. To request that your file be expedited you must send a request by email or in writing to our Office along with supporting medical documentation.
The staff lawyer responsible for your file will contact you when your file is to be scheduled for an interview.
The interview is a non-adversarial process that allows claimants to tell their story to the Assessor, who may also ask questions to clarify any elements of the claim that are not evident from the claim form. It is not a cross examination. The interview is informal and is not designed to re-victimize claimants. To the contrary, the interview is intended to give claimants an opportunity to discuss their experiences and how it has impacted their lives. Besides the claimant and any support person the claimant may choose to bring (who cannot be a lawyer), only the Assessor and one of the staff lawyers are present at the interview. In most cases, the interview lasts approximately one hour.
Claimants who are required to travel more than 50 kilometres to attend an interview may request reimbursement of their travel expenses by submitting a completed Travel Claim Form. The Settlement Agreement states that the rates set out in the National Joint Council Travel Directive are applicable.
Please provide receipts for taxis, transportation, parking, hotel, ferries etc. Receipts for meals are not required as this is calculated on a “per diem” basis. The NJC Travel Directive sets out the rates per kilometre for transportation by car.
We also ask that you reference your file number on your travel claim form and in any communications with the Office of the Independent Assessor related to your travel claim.
Travel claims may be sent by mail or uploaded onto your file (please notify counsel assigned to your file if you upload a travel claim).
The travel expenses of any person accompanying a claimant are not reimbursable.
The Office of the Independent Assessor is responsible for paying compensation to claimants under the Settlement Agreement. To do so, the Independent Assessor makes a request for funds from the RCMP at the end of each calendar month. It takes up to seven business days for the money to be received by the Independent Assessor. After the money has been deposited in the Independent Assessor’s trust account, the Independent Assessor issues cheques to the claimants whose files were decided in the previous calendar month. For example, a claimant who is interviewed at the beginning of May, can expect to receive her decision and compensation by the middle of the next month, June.
Similarly, a travel claim that is received at the beginning of a calendar month will only be paid in the following month. In general, we advise claimants that payment will take approximately 6 weeks.
If a claimant is represented, the decision letter and cheque will be sent to her lawyer, who is then responsible for communicating with the claimant.
In the May 30, 2017 Settlement Approval Order, the Federal Court awarded class counsel fees of 15% plus applicable taxes. Accordingly, every award of compensation under the Settlement Agreement has 15% (plus applicable taxes) deducted from the total amount of compensation identified by the Settlement Agreement. This amount is deducted even if you are represented by another lawyer.
Questions regarding the decisions rendered
The Independent Assessor is bound by the definitions and eligibility requirements in the Settlement Agreement; he cannot decide to award compensation when a claim does not fall within the scope of the Settlement Agreement. In most instances, if you received a letter refusing compensation it is because your claim did not meet one or more of the requirements of the Settlement Agreement which are:
- that the claimant demonstrate that it is more likely than not that the alleged events occurred and, if so, if they occurred in, or in relation to, the workplace, between September 16, 1974 and May 30, 2017;
- that the events found to have occurred constitute harassment within the definition set out in article 1.01 of the Settlement Agreement, that is, more specifically, they are the result of gender or sexual orientation-based discrimination or harassment;
- That the nature and severity of harm suffered by the claimant was caused or contributed to by the gender or sexual orientation-based workplace harassment and not some other incident such as a personal life event or non-gender or sexual orientation-based harassment; and
- That the level of compensation to be awarded is in accordance with Appendix 7 of Schedule B of the Settlement Agreement.
The Settlement Agreement also provides that: “the Assessor may deny any claim as unproven or on the basis that the events do not constitute harassment.” If the incidents described in your claim are not sufficiently serious to meet the threshold of harassment or are not clearly linked to your gender or sexual-orientation, the claim will be denied.
Other grounds on which a claim will be denied are:
- The claimant has submitted more than one claim form.
- The claimant has received prior financial compensation for the same incidents.
- The claimant is not, or was not, at the time of the harassment, a primary class member. For example, the claimant is male, the claimant is deceased, or the claimant was not a regular member, civilian member or public servant as defined in the Settlement Agreement.
- The claimant has opted out or has been deemed to have opted out by not discontinuing related litigation.
- The person responsible for harassment was not an employee of the RCMP, i.e. was a consultant or a member of the public.
If you received a decision that does not award you compensation, it means that the Assessor has reviewed your claim, as required by the Settlement Agreement, and found that one or more elements required by the Settlement Agreement have not been met or established. The Assessor is bound by the Settlement Agreement to deny these claims.
All final assessments are made by the Independent Assessor after reviewing all the information and evidence provided by the Claimant. This review is based solely on the information and evidence provided by the claimant. Incidents and injuries that you do not clearly included in your claim form cannot not be considered in the assessment of your claim.
The Independent Assessor assesses claims in accordance with the levels of culpable conduct, injury and compensation found in the Settlement Agreement.
Your claim was found to fall within level 1 or 2 based on the conduct and injury you identified in your claim form.
The claims process established by the Settlement Agreement requires the Independent Assessor to make a preliminary paper-based determination of the level of a claim, based on the documentary information provided to him.
Only claims that have been preliminarily assessed at level 3 or higher are given an interview. This is consistent with the goal of proportionality agreed to by the representative plaintiffs and the RCMP. The assessment of a claim was not to be more complicated and expensive than the amount of the resulting award.
Claims that are preliminarily assessed at levels 1 and 2 are assessed on a paper basis. If the information provided in the claim form does not support an award at level 3 of higher, no interview will be offered.
Level 2 marks the threshold between files that will be decided solely on the written record provided by the claimant, and those claims where the Settlement Agreement requires that an Assessor interview the claimant (levels 3 to 6).
To ensure that the Assessor meets all claimants who should receive an interview, the Settlement Agreement provides for a reconsideration mechanism where new evidence or information becomes available that would likely have led the Assessor to grant an interview.
To have a Level 2 assessment reconsidered, the claimant must demonstrate that she has information that was not available when the Independent Assessor’s decision was made, and that this information shows, on reasonable grounds, that the Independent Assessor should interview the claimant before determining the final level of her claim. Medical or other reports created after the claimant receives a decision, will, in most cases not meet the test required by the Settlement Agreement as such reports are generally available to claimants prior to the date of the decision. If you could have obtained the information prior to the decision it is not new information.
If the Assessor denies your request for reconsideration your claim will be finalized at Level 2 and a decision letter and cheque will be sent to you. This will close your file.
If your request for reconsideration is allowed, you will be invited to an interview.
If your claim is assessed by the Assessor at Level 5 or Level 6 your current spouse and your children are entitled to make a secondary class claim. The form will be provided to you along with your decision letter and must be returned to the Office of the Independent Assessor or uploaded to the Independent Assessor’s secure website within 60 days of the decision date (i.e., the date on the decision letter).
To make a secondary class claim you must complete a Secondary class member Claim form for each person. You must provide government issued photo identification for the secondary class member if he or she is an adult. You must also provide proof of your relationship with the secondary claimant. This includes, but is not limited to, a separation agreement awarding custody, a birth certificate naming you as a parent, an affidavit stating that you are the parent or current spouse of the secondary claimant, a marriage certificate or proof of cohabitation as common law spouses (bills etc.). The staff lawyer assigned to your file can confirm whether the proof of your relationship is sufficient.
A secondary class claimant is entitled to a percentage of the award given to the primary claimant to a maximum of 10% total. If there are more than two secondary claimants, the 10% maximum is divided between them. For example:
- One secondary claimant is entitled to 5% of the overall award.
- Two secondary claimants are entitled to 5 % of overall award each.
- Three secondary claimants are entitled to 3.33% of the overall award each.
- Four secondary claimants are entitled to 2.5% each. Etc.
In the May 30, 2017 Settlement Approval Order, the Federal Court awarded class counsel fees of 15% plus applicable taxes. This also applies to secondary class awards. Class counsel fees are accordingly deducted from the compensation paid to secondary class claimants.
With the exception of the reconsideration process established for level 2 decisions, the Settlement Agreement clearly states that there is no appeal or judicial review of the Assessors’ decisions.
Once the Assessor has issued a decision the file is closed.
Our office will not respond to complaints about the outcome of a file as we have no information to provide apart from what has already been communicated to you in the Assessor’s decision letter.
The absence of an appeal mechanism provides closure and finality to the assessment process and was agreed to by the representative plaintiffs and the RCMP.
It is important to remember that the claims process established by the Settlement Agreement is not a judicial process; it is a private process designed by the representative plaintiffs and the RCMP to provide class members with an assessment process that does not involve the courts.
This allows claimants to benefit from confidentiality, in a non-adversarial context. The process selected avoids the need for judicial assessments of individual claims, which could have gone on for many years, at a significant cost for the claimants.
The representative plaintiffs and the RCMP agreed to this limitation and have indicated that they have confidence in the Assessor’s judgment and ability to determine claims fairly.
The Assessor’s office cannot provide legal or tax advice. You should seek advice from a lawyer or a financial professional in your home province/territory.
All information submitted and created by the Independent Assessor and his office will be disposed of 6 months after the last payment is made under the Settlement Agreement.