On March 31, 2021, Mr. Shapiro concluded a multi-year project adjudicating and ultimately leading the Independent Assessment Process (IAP) and Indian Residential Schools (IRS) Adjudication Secretariat, created as a result of what was then the largest class actions settlement in Canadian history.  This is summarized below. Although Mr. Shapiro continued with a limited amount of non-IRS arbitration, tribunal and mediation work throughout his time with the Secretariat, with the end of the IAP, Mr. Shapiro has returned to his former mediation and arbitration practice, with a focus on labour arbitrations.  He has numerous labour arbitrations and mediations underway. He has presided over virtual hearings since the COVID-19 emergency as he returns more fully to his labour arbitration practice.  He was invited to speak at the 38^th Annual Labour Arbitration and Policy Conference, Lancaster House, on the Opening Plenary, The COVID-19 Pandemic Pressing Issues for Unions and Employers  (with Union and Employer counsel, an economist and physician), Calgary, AB, June 4, 2020 (ultimately delivered by Zoom).  He was also the featured speaker of the Dean's Lecture Series, Ted Rogers School of Management, Metropolitan University, Toronto, in March 2022, discussing the IAP. 

Background

The unique background and skillset related to both litigation and alternative dispute resolution summarized above led to an opportunity for Daniel Shapiro to deepen his service beyond Saskatchewan to serve vulnerable Canadians nationally, in the form of class actions arbitrations, references and adjudications. His appointment as arbitrator/referee under the national Hepatitis C Class Actions Settlement, which in turn led to the leadership role with which he is most closely identified and associated, as Chief Adjudicator of the Independent Assessment Process (IAP) of the Indian Residential Schools Adjudication Secretariat.

• 2001-present: Mr. Shapiro was appointed by Justice Winkler of the Supreme Court of Ontario as Saskatchewan (and at times Manitoba and Newfoundland) Referee/Arbitrator for disputes under the Hepatitis C Class Actions 1998-1990 Settlement Agreement.
• 2003-March 31-2021: Indian Residential Schools claims adjudication

In the fall of 2003, Mr. Shapiro was appointed in the first group of senior adjudicators under the Alternative Dispute Resolution (ADR) Process, to adjudicate upon claims of physical and sexual abuse brought by former students of Indian Residential Schools.  The ADR process dealt with approximately 5,000 individual claims before it began to conclude in 2007, with the implementation of the IAP.  ADR introduced the concept of reconciliation, before that term was in common usage, into the hearing process. In this and other important respects, while not in itself the product of class action litigation, the ADR Process was an important precursor to the IAP.

In 2007, Mr. Shapiro was appointed Deputy Chief Adjudicator of the IAP, Indian Residential Schools Adjudication Secretariat. The IAP operated under supervision of superior court judges in 9 provinces and territories. The IAP was one of two reparations components of the Indian Residential Schools Settlement Agreement. Brokered by retired Supreme Court of Justice Frank Iacobucci, it was the largest and most comprehensive pan-Canadian class action settlement in Canadian history. This historic settlement is the first such program internationally, and has been studied in counties with similar dark chapters in their own histories, such as New Zealand and Australia. The IAP was the private, confidential, reparations component of the IAP and the sister tribunal to the Truth and Reconciliation Commission (TRC), the public face of the Settlement Agreement.  Designed to deal with an estimated 12,500 claims over five years, in fact, 38,276 I applications were filed.  While serving as Deputy Chief Adjudicator, in addition to presiding over his own hearings in urban settings, remote and northern communities across the country, and conducting reviews of decisions of other adjudicators, Daniel Shapiro chaired the Technical Sub-committee of the IAP Oversight Committee.  In that capacity, he was the lead in working with the multi-party stakeholders, facilitating the development of the innovative policies procedures necessary to implement the complex IAP, which has been described as sui generis and unique among tribunals around the world.   

In July 2013, Daniel Shapiro was appointed as Chief Adjudicator of the IAP, Indian Residential Schools Adjudication Secretariat, by Warren Winkler, then Chief Justice of Ontario, on the unanimous recommendation of the stakeholder representatives on the IAP Oversight Committee, including representatives of former students (AFN and Inuit Representatives), lawyers representing former students, the Government of Canada and the Churches that operated the Indian Residential Schools.  At its peak, with an annual budget of approximately $60M, Mr. Shapiro led a team of 109 adjudicators and Deputy Chief Adjudicators across the country, with approximately 275 staff, in offices in Vancouver, Regina, Winnipeg and Gatineau, conducting over 4,500 in-person hearings per year. 

A total of $3.233B in payments were made to satisfy awards and settlements to former students under the IAP.  The average compensation awarded was $91,500. 

The unique inquisitorial process of the IAP was designed and implemented to provide redress for historic state wrongs, eliminate questioning of former students by lawyers, be claimant-centred and provide a private, safe, culturally-appropriate and respectful setting in which former students could provide their testimony of the most deeply personal and painful experiences in their lives.  It was implemented in a manner designed to provide opportunities for reconciliation and individual and multi-generational healing.  Rather than requiring former students to come to larger centres for their hearings, IAP adjudicators went to them – conducting hearings in claimants’ homes, nursing homes, hospitals and correctional facilities, and incorporating Indigenous health supports, ceremony and traditional methods of solemnization of testimony chosen by former students into the hearings.  Due to the highly sensitive and politically charged nature of the issues surrounding Canada’s role in both creating and then seeking to address the dark chapter of its history that led to the creation and operation of Indian residential schools, and the historic nature of the process, the IAP has attracted an extraordinary level of media attention, both in mainstream media nationally and locally and in Indigenous media, both nationally and extensively in the north.

The unique nature of the process and vulnerabilities of class members created many challenges and required many steps to be taken to address these vulnerabilities that had not been anticipated by the framers of the Settlement Agreement. Daniel Shapiro played a key role in developing and implementing many of these important efforts. Among them, the Lost Claimants Protocol went to extraordinary lengths not seen in any other tribunal anywhere, to search for and locate claimants who had lost contact with the Secretariat, resulting in finding over 500 claimants, who were given an opportunity for a hearing. 

In addition to travelling for hearings including many remote communities in the Canadian north and writing hundreds of ADR and IAP decisions, Mr. Shapiro led the Secretariat through a complex series of court cases, including a precedent-setting privacy law 2017 decision by the Supreme Court of Canada, in Canada (Attorney General) v. Phil Fontaine et al, 2017 SCC 47.  The Court unanimously agreed with Mr. Shapiro’s controversial position that the choice of whether or not to archive transcripts of IAP hearings and other materials generated in these private processes belonged to the claimants alone. The Supreme Court of Canada rejected the positions of the Truth and Reconciliation and the Government of Canada to the effect that these materials were automatically to be shared in a public archive, without the consent of former students. The court arrived at this decision despite the highly emotionally charged arguments that would have given precedence of the “collective right to know” over the individual’s privacy rights that had been promised to them in the IAP.

Mr. Shapiro played a key role in shaping the IAP, which in turn has played a fundamental role in allowing the parties to the Settlement Agreement to meaningfully work towards reconciliation; it is now generally accepted that without justice, there can be no reconciliation between Canada and its Indigenous peoples.  In a very real sense, particularly in his capacity as Chief Adjudicator, Mr. Shapiro has been an advocate for a process – one designed to provide redress for historic wrongs, while playing an important role in achieving healing and reconciliation. Mr. Shapiro has written hundreds of decisions in the IAP.  As Chief Adjudicator, he has been the “court of last resort” within the IAP, which sets out two levels of review of decisions by other adjudicators and one level of appeal regarding adjudicator decisions regarding the appropriate amount of legal fees to be paid to claimant counsel.  As Deputy Chief Adjudicator, from 2008 until his elevation to Chief Adjudicator in July 2013, Mr. Shapiro chaired/facilitated the Technical Sub-Committee of the Oversight Committee for the IAP, which consists of an independent Chair and stakeholder representatives of Canada, Church Organizations, the Assembly of First Nations, the Inuit and two organizations of claimant counsel.  This process resulted in the creation of most of the policy papers that governed the operation of the IAP and met every 6 weeks over the busier years of the IAP.