February 2007

Disclaimer: This article is written for informational purposes only and should not be relied upon as legal advice. In each case, specific legal advice should be obtained which will be responsive to the circumstances of the individual requiring it (Copyright and Disclosure).

Should you need to discuss this Article or any other related matter, please contact Russell Raikes by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

Introduction

More than 12,000 individual lawsuits, one certified class action, upwards of 10 pending class actions and test cases on the verge of trial. By the Spring of 2005, the Government of Canada found itself under a legal siege over its ill-conceived and chronically under-funded Indian Residential School system. Add in political pressure by the Assembly of First Nations and a fragile minority government, and the ingredients were ripe for negotiation to resolve one of the saddest chapters in the history of this great country.

In November, 2005, an agreement in principle was reached to settle the pending litigation and the claims of all Indian Residential School students. This settlement was reached after months of intense negotiations across Canada. The settlement has survived a change in government, months of legal wrangling over the wording of the final settlement agreement and an approval process unprecedented in Canadian legal history.

This paper will examine the settlement with particular emphasis on the Common Experience Payment (CEP) and Individual Assessment Process (IAP) components. Is this settlement one which can be or should be used as a model for future settlements involving institutional abuse? Is this settlement idiosyncratic: a by-product of its peculiar factual background?

Background to Claims

From the 1800s until at least the 1980s, the Government of Canada operated and/or funded Residential Schools across Canada for indigenous children. These children were placed in the Residential School system often at the instigation of the local Indian agent or other government officials. Children as young as three years old were separated from their families, their homes and communities to attend schools where they were not permitted to speak their native language or to practice their native culture. Instead, it was hoped that by removing them from their communities and their families, they would accept and adopt mainstream values, i.e. white Christian values, and be assimilated into non-Aboriginal society.

The Residential School system was embraced by the Government of Canada and religious groups as a vehicle for social re-engineering. This policy is almost unprecedented in scope in Canada and its legacy is and will continue to be felt for generations to come in Canadian Aboriginal society.

It is estimated that there are approximately 80,000 former Residential School students still alive. Although many reside on Reserve or in traditional societies in the north, the fact is that a significant number of former students live off Reserve. For far too many, the Indian Residential School system was an horrific experience, one which has scarred them psychologically, emotionally, spiritually and physically. The wounds giving rise to these scars have had a ripple effect on subsequent generations. Many survivors report that not having learned their own language, they were unable to pass on that legacy to their children. Others never received or learned proper parenting skills; in particular, they learned to be ashamed of who they were and have carried the guilt, shame, humiliation and anger through their lives and into their relationships with their parents, siblings, spouses and children. In short, not only did the Residential School system not deliver what it was hoped it would deliver, it has left in its wake a profound and disturbing legacy of pain and dysfunction.

In his Reasons for approval of the settlement in this action, Justice Kilpatrick of the Nunavut Court wrote:

“[1] There is a brooding resentment for a life that is damaged. There is anger for a childhood that is lost. There is profound emptiness and a sadness that comes from the loss of an opportunity to be raised in a nurturing family environment. There is only a memory of survival; a memory scarred by pain, anxiety and humiliation. Then there is the loneliness, a solitude caused by years of isolation from language, culture, and extended family. Michelline Ammaq is left with a great yearning to know a life that has never been lived. These feelings are the unfortunate legacies, the bitter byproducts, of a residential school experience.”

As indicated, there are an estimated 80,000 Residential School survivors alive today. Many of these survivors are elderly and/or in poor health. It is estimated that more than 1,000 survivors die every year. The lifespan of indigenous peoples is significantly shorter than that of non-indigenous peoples in Canada. The sad fact remains that conditions on many Reserves in this country resemble near third-world conditions; the indigenous population bears the burden of poverty disproportionately in this country.

Indian Residential Schools constitute what was defined as a “total institution” in the Law Commission of Canada’s Report on Institutional Child Abuse. All aspects of daily life were strictly regulated at these schools. Most regrettably, these institutions have proven to be a fertile ground for the most heinous of abuse: physical and sexual abuse of children. It is estimated that at least 15% of those children who attended an Indian Residential School were sexually abused or seriously physically abused while attending the school. Many of the perpetrators of the abuse are dead. Many of their victims are also dead. Those victims still alive await a reckoning of sorts.

The sad reality of our legal system is that it cannot provide perfect justice. The hands of time cannot be turned back and a childhood restored. No amount of monetary compensation is an adequate substitute for a lifetime of pain. Moreover, our system has not yet firmly tackled important issues like whether loss of language and culture is a justiciable claim; whether the intergenerational effects are compensable particularly given the difficulties of proof of causation; whether the harm to the fabric of the aboriginal community is reparable.

In summary, the Residential School system has created layers of victims. The claims of the student victims are decades old. Their abusers are, for the most part, deceased. Most abusers have escaped any form of criminal or civil consequence. The passage of time, the cloak of secrecy which often accompanied sexual abuse and the novelty of some of the claims form part of the backdrop against which this settlement was crafted.

Settlement Components

In broad terms, the settlement of the Indian Residential School litigation includes the following components:

1. A Common Experience Payment (CEP) available to every student who attended an Indian Residential School;

2. An Individual Assessment Process (IAP) to provide further compensation to those students who were sexually abused, seriously physically abused or who suffered serious psychological abuse;

3. A Truth and Reconciliation Commission;

4. Commemoration of the plight of students, their families and communities;

5. Programming directed at healing and wellness for students and their families;

6. Legal closure through the dismissal of actions and releases of claims.

Common Experience Payment (CEP)

Every student who attended an Indian Residential School is entitled to submit an application for compensation arising from their attendance at the Residential School. Mere attendance is the only criteria for entitlement. Each student who attended is entitled to receive $10,000.00 plus $3,000.00 for each school year or part of the school year following their first school year. For example, a student who attended a Residential School for five years is entitled to receive $22,000.00 ($10,000.00 plus 4 x $3,000.00). This compensation does not require proof of any specific abuse; rather, it is implicit that this payment compensates those who attended a Residential School for, inter alia, being removed from their family and community, lousy food, poor clothing, unpaid labour, poor education, minor physical abuse and loss of language and culture. In essence, the Common Experience Payment includes compensation for all damages suffered by anyone who attended a Residential School except for any claims which are covered by the IAP.

The CEP adopts a purely formulaic approach; it does not attempt to measure the harm resulting from attendance at a school. It is certainly arguable that someone who attended for two years is every bit as messed up as someone who attended for 10 years, assuming neither suffered any abuse that would give rise to an IAP claim. Is it true in every case that the harm from attendance at the school increases annually at the same rate? Can it really be said that children who started at the school at the age 13 were as vulnerable as children who started at age five? In the end, the settlement opts for a simple mathematical calculation for the following reasons:

1. It avoids the expense and delay that would attend the need for an individual assessment of harm;

2. It provides consistency of result as between the students; that is, students who attended a Residential School for the same length of time are treated equally; and,

3. It minimizes the required proof.

Following approval of the agreement in principle by Cabinet, an advance payment was made in the amount of $8,000.00 to each former Residential School student who was 65 years of age or older as of May 30, 2005. That payment was characterized as an ex gratia payment in the event the settlement was not approved by the courts. If approved, then Canada receives a credit against the moneys payable to the student recipient under the CEP portion of the settlement. For example, if Joe attended a Residential School for 11 years and would be entitled to $40,000.00 under the CEP component of the settlement, and Joe received an advance payment of $8,000.00, he remains entitled to receive the balance of $32,000.00 once the settlement is completed and becomes final and binding.

As of this date, the settlement has been approved in its entirety by four Courts: Manitoba, Northwest Territories, Yukon and Nunavut. The remaining Courts (Ontario, Quebec, British Columbia, Alberta and Saskatchewan) have approved the settlement subject to what are termed “administrative matters” being addressed to the satisfaction of those Courts. It appears likely that those “administrative matters” have been satisfactorily addressed with the result that orders approving the settlement will shortly issue from each of the nine Courts.

Attendance is the critical criteria for the CEP payment. Attendance must be verified or be capable of being verified. The Government, with the cooperation of the church entities, has compiled a database based on school enrolment records. There are gaps. Some of these gaps have resulted in rejections of applications for the advance payment by some elderly members of the student class. Apparently, the Government continues to update its records as new school attendance records become available. Although the advance payment requires a school record, the CEP process will show greater flexibility where alternate proof is provided, i.e. affidavits by other students who were there at the same time attesting to the individual’s attendance. The CEP process also has an appeal process for those whose claims are denied wholly or in part.

The rigidity which the Government has applied to the enrolment records is troubling to plaintiffs’ counsel and survivors. In one case with which the writer is familiar, the school enrolment records which were prepared quarterly did not record the student as being present, but other school records showed that the student was present by virtue of her participation in a dental clinic. This very elderly student has been denied her advance payment, but has received assurance that a more flexible approach will be taken to her CEP application once the settlement is approved and finalized.

Individual Assessment Process (IAP)

This paper will address in a broad brush manner the IAP process. The details of the process are important and a careful review of the IAP compensation rules is essential.

The IAP deals with specific kinds of abuse, all other claims being extinguished by the CEP. IAP claims are known as “continuing claims”. These claims fall into the following three categories:

1. Sexual and physical assaults arising from or connected to the operation of an Indian Residential School, 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 Indian Residential School in question, or other adults lawfully on the premises where the claimant was a student or resident or where the claimant was under the age of 21 and was permitted by an adult employee to be on the premises to take part in authorized school activities;

2. Sexual or physical assaults committed by one student against another at an Indian Residential School where:

   (a) The claimant proves that an adult employee of the Government or church entity which operated the Indian Residential School in question had or should reasonably have had knowledge that abuse of the kind alleged was occurring at the school during the time of the alleged abuse and did not take reasonable steps to prevent such abuse; or,

   (b) In a case in which the proven assault is a predatory or exploitative sexual assault at the SL4 or SL5 level, the defendants do not establish on a balance of probabilities that reasonable supervision was in place at the time;

3. Any other wrongful act or acts committed by adult employees of the Government of a church entity which operated the Indian Residential School in question, or other adults lawfully on the premises, which are proven to have caused serious psychological consequences for the claimant. These claims are referred to as “other wrongful acts”.

Therefore, the continuing claims are sexual or physical abuse of a student by an adult, sexual or physical abuse of a student by another student, and other wrongful acts.

Overview of the Process

The IAP has three process options:

1. Standard Track;

2. Complex Track;

3. Access to the Courts.

Standard Track

The Standard Track claim is initiated by a completed application form, signed by the claimant, with any required accompanying documents. The application and required documents are submitted to the Secretariat for screening. The Secretariat ensures that the claim falls within the categories of continuing claims, the application is complete and the required documents have been provided by the claimant. The Secretariat provides a copy of the application to the Government and, where applicable, the appropriate church entity on a confidential basis so that the Government and church entity may complete the document search for all available records pertaining to the claim and the student’s attendance at the Residential School. An effort is made to attempt to locate the alleged perpetrator. Having satisfied itself that the claim fits within the parameters of the IAP process and all the required materials have been submitted, the claim is screened in. The Secretariat then forwards all of the compiled documents, including the application, to an Adjudicator for hearing.

The application is a detailed form which should be prepared by a lawyer, where possible. The form requires the individual to list the compensable abuse which they suffered and to provide a summary of the harms suffered as a result of this abuse. It is not a mere statement of allegations. The application must be signed by the claimant and the extent to which the evidence varies from the application may be taken into account by the Adjudicator in assessing credibility, liability and compensation. Compensation in the Standard Track works on a points system comprised of the following categories:

1. Acts Proven;

2. Consequential Harm;

3. Aggravating Factors;

4. Consequential Loss of Opportunity;

5. Future Care Costs.

Acts Proven

The IAP compensation rules have seven categories of Acts Proven. In essence, these are the wrongs for which compensation is being sought. There are five categories of sexual abuse, one category for physical abuse and one for other wrongful acts. The different categories of sexual abuse range from one or more incidents of fondling or kissing on the low end to repeated, persistent incidents of anal or vaginal intercourse on the high end. Each category is assigned a range of points. It is the Adjudicator’s role to determine whether the claim has been proven and, if so, to assign points within that category. Please note that the amount of points assigned is based on the most severe act proven. For example, if a student was fondled on one occasion and raped on another occasion and assuming both are proved, points would be assigned based on the rape which was the more severe of the two incidents. Points in the Acts Proven category are not cumulative.

Consequential Harm

Having proved that a wrong occurred, the next step is to assess the subjective harm suffered by the individual. There are five levels of harm and a range of points assigned to each level. The more severe the harm, the more points the claimant receives. Each level of harm has a description of the kinds of evidence that would be required to fall within each category. The compensation rules provide that each category is to be looked at broadly. The claimant is not required to suffer each and every symptom that is referred to in that category, but by the same token, the fact that the claimant has one symptom that may be the higher level of harm does not, in itself, mean that the claimant’s harm level should be assessed at that higher level.

Aggravating Factors

The points from Acts Proven and Consequential Harm are added together. If the Adjudicator finds that there are aggravating factors as set out in the compensation rules, the Adjudicator may, in his or her discretion, add 5-15% of the points for Act and Harm combined. Aggravating factors include, inter alia, verbal abuse, racial acts, threats, intimidation/inability to complain, oppression, humiliation, degradation, etc.

Loss of Opportunity

The Standard Track also includes compensation for Consequential Loss of Opportunity. There are five levels of loss of opportunity, again with a range of points assigned to each category with more points for the more severe effect. Loss of Opportunity is intended to provide compensation to recognize that the abuse and resulting harm may have had an impact on the ability to obtain and retain work during the claimant’s lifetime.

The Grid

Leaving aside Future Care for the moment, the Adjudicator totals the points allotted for Acts Proven, Consequential Harm, Aggravating Factors and Loss of Opportunity. That total is then plugged in to an overall compensation grid. The grid has two categories: points and compensation. On the points side, the total points are broken down into 13 categories or ranges. For example, 1-10 or 71-80. For each range of points, there is a corresponding dollar range. For example, 71-80 points is $106,000.00 - $125,000.00. The maximum amount recoverable in the Standard Track is $275,000.00. The Adjudicator determines the measure of compensation based on the grid.

Future Care

As mentioned, this Track also includes provision for Future Care. The Adjudicator may grant up to $10,000.00 for medical treatment and counselling or up to $15,000.00 if psychiatric treatment is required. These amounts are in addition to whatever dollars are awarded for the total of the other components. Therefore, at the high end, the maximum recoverable under the Standard Track is $290,000.00 inclusive of Future Care costs. Any amount paid in the IAP process is in addition to what a student is entitled to receive under the CEP.

The Hearing

The hearing process follows an inquisitorial model. Only the Adjudicator is entitled to ask questions of the claimant and non-expert witnesses. Counsel for the claimant and for the Government/churches may suggest lines of inquiry so as to ensure that the full story is brought out. The Adjudicator may refuse to ask questions that he or she believes to be irrelevant to credibility, liability or compensation.

Where the claimant alleges that they suffered harm for which they received treatment, they are required to obtain and submit with their application those medical treatment records, including clinical notes. Any diagnosis that is set out in those notes is not determinative; for example, if the doctor’s clinical notes indicate that the patient is suffering from PTSD, that diagnosis is not binding on the Adjudicator. The fact of the treatment is, however, a material fact which the Adjudicator will consider. The Government and/or church may require the testimony of the doctor to be given orally although there is no power to compel the attendance of a witness. If a doctor refuses to testify, or is deceased, that fact may be taken into account by the Adjudicator in determining what weight to attach to that evidence.

Where the claimant is asserting that harm occurred at Harm Level 4 or 5, the Adjudicator may require the claimant to submit to an assessment by an independent expert. That expert is drawn from an established roster of experts. Where counsel for the claimant and Government agree, the Adjudicator must appoint such an expert; otherwise, the Adjudicator will make that decision after having determined credibility, liability and that there are reasonable grounds for the claim at an HL 4 or 5 level.

The standard of proof in the IAP process is on the balance of probabilities. This process does not incorporate technical requirements such as the requirement for corroboration under some Provincial or Federal Evidence Acts. It does, however, require that the victim’s evidence be credible.

Complex Track

The Complex Issues Track is for continuing claims where the claimant is seeking an assessment of compensation for proven actual income losses resulting from continuing claims, and for other wrongful act claims. Where actual income losses are proven pursuant to the standards set out within the Complex Issues Track of the IAP, the Adjudicator may make an award for the amount of such proven loss to a maximum of $250,000.00 in addition to the amount determined pursuant to the grid. In determining the amount pursuant to the grid, there is to be no allocation of points for Consequential Loss of Opportunity. In awarding actual income loss, the Adjudicator must use legal analyses and amounts awarded in Court decisions for like matters.

In the Complex Issues Track, after the IAP Secretariat has determined that a case is ready to proceed to a hearing, the claimant is required to attend a preliminary case assessment hearing to answer questions from the Adjudicator. The purpose of the hearing is to provide for a preliminary assessment of credibility and to ensure that there is a prima facia basis to support a claim of the nature for which the Complex Track is designed. Any answers given in these preliminary proceedings are on a without prejudice basis. They are not recorded or transcribed and are not admissible in the other phases of the hearing. Once the prima facia case has been made out, the Adjudicator arranges for expert assessments as required by the standards set in the IAP Rules. On receipt of the expert and/or medical evidence or at any point if that has been waived, the Government and claimant may attempt to settle the claim on what evidence is available or the claim may proceed to a hearing.

Access to Courts

The IAP recognizes that there are some cases for which the IAP is inadequate either in its process or the measure of compensation. At the request of a claimant, access to the Courts to resolve a continuing claim may be granted by the Chief Adjudicator if satisfied that:

1. There is sufficient evidence that the claim is one where the actual income loss or Consequential Loss of Opportunity may exceed the maximum permitted by the IAP;

2. There is sufficient evidence that the claimant suffered catastrophic physical harms such that compensation available through the Courts may exceed the maximum permitted by the IAP; or,

3. In any other wrongful act claim, the evidence required to address the alleged harms is so complex and extensive that recourse to the Courts is the more appropriate procedural approach.

If permission is granted by the Chief Adjudicator for the matter to proceed in the Courts, it will proceed in accordance with the standards, rules and procedures of the Court where the claim is brought. In that case, Canada is free to raise all defences available in law, including limitation periods and defences based on Crown prerogative. Further, the requirement for proof will be in accordance with the strict requirements of the Court as in any other similar Court action.

Review of Adjudicators’ Decisions

The IAP contains a review process for both the Standard and Complex Track. Generally, the claimant may have any decision made by an Adjudicator reviewed by a second Adjudicator. That Adjudicator will determine whether or not a palpable and overriding error was made. If he or she concludes that one was made, he or she may substitute their own decision or order a new hearing. Both sides are entitled to have the Chief Adjudicator or someone designated by him or her ascertain whether the Adjudicator or reviewing Adjudicator’s decision properly applied the IAP model to the facts as found by the Adjudicator.

Truth and Reconciliation Commission

The Residential School Settlement includes funding for a Truth and Reconciliation Commission. The underlying goals of this Commission are, inter alia:

1. To provide a venue for former students and their families to tell their stories as to the experiences and impacts of the Residential School experience;

2. To generate a report which will memorialize the Residential School experience;

3. To provide a vehicle for public education as to the history of the Residential School experience with the hope that appropriate lessons will be learned and future generations will not suffer the same way.

Commemoration

The Indian Residential School settlement also provides money for commemoration of the experience of Residential School victims and their families. Some money has already been spent for memorials. This aspect of the settlement is regarded by many former students as wasteful, while others feel very strongly that something be done to memorialize their experience for future generations. For some family members, this component is crucial because it provides a form of public vindication for what they and their parents have endured.

Healing and Wellness

A substantial amount of money has been set aside to provide programmatic relief to victims and their families. The Government has previously paid $300 million to the Aboriginal Healing Fund. It is anticipated that if there is any money left in the Fund established for the Common Experience Payment, those moneys will go into the pot to be used to provide an education credit for former students which they may allocate to family members. That credit is to a maximum of $3,000.00 per former student. Any excess from the CEP Fund that is not taken up by the education credit will go into further programming for healing, wellness and education purposes.

Closure

The defendants sought and required closure. The settlement is conditional upon Court approval by all nine Courts. Further, it is conditional on less than 5,000 former students opting out. If more than 5,000 opt out, then Canada will have the option whether to go forward and implement the balance of the settlement. If it chooses not to, then the litigation siege is back on.

The settlement agreement requires that class actions in each jurisdiction be certified and that the settlement be approved by the Courts. The approval orders will contain provisions dismissing all claims which have not opted out except as provided for by the settlement. In other words, anyone who does not opt out is bound by the settlement and is entitled to whatever rights they may have under the settlement. All claims which they may have related to the Residential School experience are extinguished and replaced only with those rights which they have under the settlement.

The Residential School settlement is pan-Canadian in scope. It is intended that students in British Columbia are treated the same as students in Nova Scotia. It is intended that all IAP claims are completed within five years of the commencement of the IAP process. The Government has covenanted in the settlement agreement to provide such resources as are necessary to ensure that result.

Holistic Approach

In his recently released decision approving the settlement, Mr. Justice Kilpatrick wrote:

“[61] This is a settlement that is fashioned with Inuit perspectives in mind. It is holistic in its scope. It provides tangible benefits; benefits directed not only at the individual claimant, but at the larger aboriginal community of which the claimant is a part. It is forward-looking. It provides some redress in the form of monetary compensation for past misdeeds while focusing on the need to heal. It addresses the healing needs of the survivor and the larger family unit through the provision of remedial programming. It provides for community healing through a Truth and Reconciliation Commission and related commemorative events. No legal victory in a courtroom could ever hope to do this. This Court is not equipped to address the holistic healing perspectives of the individual, his or her family and the community in a way that does justice to the larger Inuit and aboriginal perspectives on life, on living and on conflict resolution. The settlement agreement proposes to do just that.

[62] The Inuit understand justice to be a dynamic human process. It is ‘doing justice’ that is important. Justice is a process that restores harmony and balance to relationships that are damaged. Success is not measured solely by the size of an individual’s damage award, but by the number of survivors and their families who can be reconciled with their past. The Inuit expression of justice is multi-dimensional and encompasses the interests and needs of all who are affected by the problem at issue.”

Many of the constituent elements of the settlement in the Indian Residential School cases are capable of being adapted to the settlement of other mass tort claims; in fact, it would be presumptuous and in error to conclude that this settlement is not an adaptation of approaches that have been used to settle other mass tort claims. At its core, the Indian Residential School settlement has three components:

1. 1. A fixed payment to every member of the class;

2. 2. A process for resolving the claims of those members of the class who suffered a particular wrong or kind of wrong that was not experienced by all members of the class; and,

3. 3. A public education/victim recognition component.

These three components are wrapped in a healing and reconciliation model where victims are provided with support through the process and following the settlement.

The components of this settlement are not unique to this case. Process settlements such as the IAP component have been used in many cases (see for example, Walkerton). What may be distinctive about this settlement is the “holistic” components. In this settlement, the Government and churches have committed substantial resources toward reconciling with the Aboriginal community and in particular, the victims and their families. This model is consistent with dicta from the Supreme Court of Canada calling on the Government and others to deal with indigenous peoples in a spirit of reconciliation.

The settlement model is, by no means, perfect. It represents compromise on both sides. Nevertheless, it seeks to provide an expeditious means of providing redress in both a conventional and non-conventional way, i.e. by cash and extra value. As Justice Kirkpatrick noted, the settlement contains a holistic element, something which is an integral part of Aboriginal culture and Aboriginal justice. It is restorative and reconciliatory. Although lawyers may prefer straightforward cash settlements, the holistic components of the settlement provide value and serve a greater individual and public purpose.

Our Court system is a by-product of our history, our political structure and our values. It is not surprising, therefore, that the Court process is fundamentally limited in what it can provide at the end of the day in the absence of a settlement. This settlement builds on that with which we, as lawyers, are most comfortable – compensation. In providing for public recognition, education, healing and support, the settlement provides an opportunity for us to incorporate aspects of social justice which are culturally significant to the victims.

Conclusion

Every settlement, or at least every settlement involving redress for physical and sexual abuse, must be crafted with a view to the needs of the victims. Although there will necessarily be a compensation component, the real challenge lies in addressing the needs of victims which are often varied and conflicting. The Indian Residential School settlement is one that attempts to balance the goal of public recognition of the misery suffered by many with the needs of some survivors for a safe, non-confrontational, private mechanism for resolving their claim. Not every case is susceptible to a Truth and Reconciliation Commission or to commemorative acts; however, in this case, these features of the settlement add real value by “doing justice” and seeking to restore harmony.

The Indian Residential School settlement is, in some measure, idiosyncratic and a by-product of its peculiar history. That does not mean that, just as it borrowed elements from other settlements, it cannot be used as a model for future settlement involving institutional abuse.