Day school survivors get easier access to lawyers of their choice in class action settlement

Following a June 17 Federal Court order, it is now easier for the former students of Indian and federal day schools to get legal advice from lawyers of their choice when applying for the Indian Day Schools (IDS) class action settlement.

Free legal advice on settlement claims is being offered by Gowling WLG, the legal firm handling the settlement. Prior to this motion, if day school survivors wanted independent legal representation, their lawyer was required to first obtain permission from the Federal Court to act on their behalf, and often had no assurance their services would be paid for through compensation money.

The restrictions discouraged lawyers from taking on claims and created "a barrier to justice" for the former students, said a Saskatchewan lawyer involved in the case.

"It was too much of a risk for many good, trauma-informed lawyers who've had a great deal of experience working with residential school survivors," said Saskatoon lawyer Nicholas Racine, who is representing around 100 former IDS students from Alberta and Saskatchewan for their claims.

"It became apparent to me that there was an access to justice issue if you have a process that has a chilling effect on experienced lawyers to participate." 

The new process allows independent lawyers to submit claim application forms on a survivor's behalf, and accept their compensation money in trust. The process requires the lawyer to provide the Federal Court with copies of the agreement with their client, detailing what percentage of the potential compensation money the lawyer will receive for their services.

"These are claims brought by victims of childhood physical and sexual abuse ... so filling out this claim form is reopening old wounds," said Racine.

"To have the option of having a lawyer who will look you in the eyes while you tell them your story ... and to have someone there physically in your presence while that's occurring — to many, that is very important." 

Face-to-face option

Racine made the motion on behalf of his client Mary Rose Naytowhow, a residential and day school survivor from Sturgeon Lake First Nation, about 150 kilometres north of Saskatoon. He worked with Naytowhow on her participation in the residential school settlement as well.

Nayhowtow said she believes that in some situations, independent lawyers will be more effective than Gowling's class counsel lawyers because they can offer more face-to-face contact, services that are specific to the community or nation, and a focus on "healing."

"I don't know anything about the other lawyers; I've never worked with somebody like that just by phone," she said.

"I was traumatized ... and I have to relive it now. 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 voiced concern about a lack of mental health supports in the process and said more consideration should be given to helping survivors cope with trauma, "rather than just giving them money."

Despite the out-of-pocket cost, Naytowhow said she believes choosing an independent lawyer meant she received more attention and better communication.

"I thought ... I'd sooner pay somebody five or 10 per cent of what I'm getting than work with somebody I don't know." 

Overcharging for residential schools settlement claims

In consideration of the motion by Racine and Naytowhow, Justice Michael Phalen noted the efforts of the plaintiffs and Gowling WLG to avoid "well-recognized problems" stemming from the Indian Residential School (IRS) settlement, where hundreds of lawyers were found to have overcharged or misrepresented residential school survivors during the process. 

The new process "seeks a balance" between those problems from the IRS process and the survivors' rights to seek their own legal counsel, said Phalen, according to the court documents.

Phalen also outlined that survivors must be made aware that free legal services are available prior to engaging another lawyer, and that all of their lawyer's fees and transfers of money still have to be approved by the court.