A June 17 Federal Court order means that that day school survivors will now be able to access legal advice from a lawyer of their choice when obtaining compensation in the federal class action settlement. The settlement process has been criticized for confusing and re-traumatizing claimants.
“I knew through my experience in representing residential school survivors how important it is for survivors to have a connection with their lawyer and the presence of someone to witness their stories of abuse,” said Saskatoon lawyer Nicholas Racine. “For many survivors, having a call centre staffed with non-lawyers and people without years of experience counselling victims of childhood abuse made it impossible to disclose.”
Legal action regarding the forced attendance of Indigenous students at Indian day schools was launched by the late Garry McLean in 2009. After reaching a settlement agreement last year, the claims process began in January to offer former students a range of compensation between $10,000 and $200,000, based on the extent of abuse suffered.
Free legal advice on settlement claims is offered by Gowling WLG, the law firm handling the settlement. While claimants can apply for the lowest compensation without additional documentation, wording in the settlement forms has been called misleading, which could result in many not receiving the compensation they are due.
“The process makes it easier to make a claim for less serious abuse,” Racine told the Nation. “It was a real worry of mine that many thousands of claimants across the country who suffered serious abuse are not going to get the compensation they deserve because this process was initially not set up to allow them personal access to trauma-informed legal counsel.”
Before Racine filed this recent motion on behalf of his client Mary Rose Naytowhow, many lawyers were reluctant to get involved because they had no assurance their services would be paid for. Under the new agreement, the claims administrator is forced to communicate with independent lawyers, who can receive payments judged reasonable by courts in trust on behalf of clients.
While more independent lawyers have since become involved in the settlement, survivors must be aware that free legal services are available from Gowling before engaging other counsel. Retaining non-class counsel releases Gowling from any ongoing responsibilities to them, and all lawyer fees and money transfers must still be approved by the court.
The revised protocols are intended to avoid common problems encountered during the Indian Residential School settlement, in which hundreds of lawyers were found to have overcharged or misrepresented survivors. Some claimants believe the extra cost is a small price to pay for the personal communication and attention an independent lawyer can provide.
“I was traumatized, and I have to relive it now,” Naytowhow, a residential and day school survivor from Sturgeon Lake First Nation, told the CBC. “Having to work with somebody that I never met is not something that I want to do, and I’d sooner work with a lawyer face to face. I would recommend that to my relatives too.”
Naytowhow also expressed concern about the lack of mental-health supports provided throughout this process. Nearly 700 day schools operated across Canada from the 1860s until the late 20th century, which aimed to assimilate approximately 200,000 Indigenous children while eradicating their language and culture.
“There’s a tremendous burden on the individual client and that’s been forced onto communities,” asserted Racine. “A lot of communities already have scarce resources and now they’re expected to support the additional levels of trauma that this process has inflicted on its members? These are not insurance claims – these are claims for childhood physical and sexual abuse.”
Racine said some of the claim form’s language is unclear even to him. It essentially asks claimants to self-diagnose harms from physical abuse and even whether they’ve been mentally impaired. In addition to these numerous grey areas, the documents supposedly required to claim higher compensation are not in fact mandatory – only a sworn declaration must be signed and witnessed.
Seeking clarification by calling the claims administrator results in being put on hold for half an hour, only to reach a call centre employee who lacks answers if taken off their script, Racine claimed. He said they never return his calls and have no names attached to emails, demonstrating a troubling lack of accountability.
“This process was sold to the court as being easy and user-friendly and I think in the six months since this started it’s proven to be anything but,” Racine said. “Victims are expected to either represent themselves or receive advice from a call centre employee – it’s a heartless process that has caused unnecessary trauma.”
Racine has had clients who didn’t want to receive their payments directly because their mailboxes were being broken into, there were concerns with Elder abuse, transient clients who didn’t have a home address, and clients who lived in multi-family homes who didn’t trust the people they lived with.
“Last week I spoke with a class member who said he could not fill out the claims form on his own because he cannot read or write very well, could not disclose abuse over the phone and would only disclose in-person to a male,” Racine recounted. “So I made a four-hour round trip to his house, sat where he was comfortable to disclose and I bore witness to the horrendous abuse he was subjected to.”
From this meeting, Racine advised him where his story might fit within the rules and they completed the claim form together. The client now has assurance that Racine will obtain the necessary records, file his claim and resolve any issues with the administrator.
“It’s important that every claimant, whether they need it or not, at least has the option for this type of legal service,” said Racine. “I want to encourage people to continue to speak out so hopefully before the claims process ends improvements will be made.”