Former N.B. attorney general tapped by Indian day school survivors for help with resubmission fight

Some day school survivors in New Brunswick paid $500 each to Lamrock's Law to help them try and change their level of compensation after filing a claim, despite the settlement's class counsel saying this is not possible.

Members of Elsipogtog First Nation say the process was unfair when they agreed to accept $10,000, the lowest level of compensation.

Susan Levi-Peters, former chief of Elsipogtog First Nation, attended the Big Cove Federal School for 10 years and hired lawyer Kelly Lamrock, who is a former N.B. attorney general and the current provincial child and youth advocate, to help her with filing her claim.

Later she began hearing from fellow survivors that they received level one compensation, when Levi-Peters knew first hand that they should have received a higher level. She knows her fellow students faced sexual, physical and emotional abuse in the school and were leaving too much money on the table by settling for level one.

She turned to Lamrock for help and he made multiple visits to the community to hear from survivors.

The Indian or federal day school system was an attempt to assimilate Indigenous children, by removing them from their languages and culture. The institutions were often run by religious institutions and some students faced physical, sexual, emotional and verbal abuse. The federal day school in Elsipogtog was run by the Roman Catholic church and operated from 1897-1985.

Under the 2019 class action settlement, survivors could file claims for compensation on a tiered system for harms suffered, from level one to level five, ranging from $10,000 to $200,000. Survivors making claims for levels two to five need to write a statement disclosing details of the abuse they suffered.

As of June 15, 2020, claimants could no longer resubmit or change the level of compensation they were seeking after filing a a claim. The deadline to file a claim is July 13.

Laying groundwork for appeal

Lamrock said the settlement's class counsel, Gowling, had an obligation to inform survivors of their legal rights and to better explain the application process. Lamrock said the claim form is 16 pages long and didn't do enough to consider the trauma of disclosure for the survivors.

Lamrock's firm put together a legal package after interviewing survivors that has a 10-page cover letter stating common narratives of abuse at the schools, and common stories from survivors that they were told to just sign their application during community information sessions; a signed affidavit, where a disclosure narrative is put together by legal counsel after interviewing the survivors; and advice on how to proceed.

Lamrock hopes this package is enough to have their applications resubmitted. He said if the re-submissions are rejected, the survivors should file a class action appeal.

But under the settlement agreement, legal fees are not allowed to be charged to survivors unless approved by the court.

The agreement states "No amounts, including legal fees or disbursements, may be charged to Survivor Class Members or Family Class Members in respect of compensation under this Settlement or any other advice, including legal advice, relating to this Settlement by anyone, including legal counsel, other than Class Counsel without the prior approval of such amounts by the Federal Court on a motion under Rule 334.4 of the Federal Court Rules on notice to the Parties."

Lamrock told CBC News his firm filed all the appropriate paperwork. Lamrock said Deloitte, the claims administrator, was made aware that he would be filing resubmissions.

But Gowling said in a statement to CBC News that there is no way to appeal compensation under the settlement.

"We are aware of advertisements by independent counsel soliciting claimants who are unhappy with their compensation," the statement said.

"We strongly caution all class members when engaging independent counsel regarding such matters, as there is no means under the claims process to submit a new claim or appeal compensation once it has been issued. It would be incumbent on independent counsel and third-party advisers to conduct themselves in conformity with their professional and legal obligations, the Federal Courts Rules, and the payment protocol issued by the Federal Court on June 17, 2020."

Under the settlement agreement, survivors are entitled to free legal advice from Gowling. Gowling has also offered webinars, community engagement sessions and a phone line for survivors to call for legal advice on their applications.

Survivors CBC News spoke with said Lamrock and his firm were clear there was no guarantee their resubmissions would be accepted, before they paid the $500 fee.

"Gowling has an obligation to people in this community," said Lamrock.

"If their system didn't work and they're the class counsel, they should be allowing these resubmissions, and if not they should be giving people a proper response that can be reviewed in court."

Lamrock said he is getting ready to end his law practice soon but said he is willing to brief any lawyer willing to take up an appeals case. He believes once an appellate judge hears the case, things may change.

"I knew the day school story but hearing it from so many people, I hope Canadians know just what crime was done here," said Lamrock.

Challenges 'from the start'

Nick Racine, a lawyer based in Saskatchewan who has represented over 400 day school survivors in Saskatchewan and Alberta, said survivors need to be wary about resubmissions.

"It is not possible to have a claim reconsidered once you have received an award," said Racine.

He said any lawyer accepting fees from day school survivors needs Federal Court approval and in order for survivors to have their application re-evaluated, the Government of Canada and Gowling would have to allow it.

"From the start, we saw the challenges given the way the settlement agreement was drafted and the lack of access to legal counsel and the difficulties survivors would have obtaining the level of compensation they deserve and the parties (the Government of Canada and Gowling) have shown no willingness to do anything about it," said Racine.

He said applying political pressure on those parties remains an option for survivors. Racine said he knows that survivors feel hurt by the process and things need to change.

"What's left is survivors feeling like they're to blame for rushing this but really it's the process that's failed them," said Racine.

Other Mi'kmaw communities are worried their day school survivors have not received fair compensation. Levi-Peters says members from Natoaganeg, Metepenagiag, and Esgenoôpetitj are hoping to bring in a lawyer, too.

Joanne Bartibogue, a day school survivor from Esgenoôpetitj, said class counsel failed to explain the levels of compensation and the people sent to her community to help survivors fill out their application weren't very useful.

"They had such poor direction and they didn't understand either," said Bartibogue.

She's in talks with a lawyer to see what can be done to help her community members. Bartibogue said she's confident once the courts hear what went on with this process, things will change.

"I'm very optimistic about it and they need to fix it."