Settlement proposal called "trick and spin"

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The federal government is not being honest about its plan to offer alternative dispute resolution to residential school survivors who want to settle out of court.

That's what two lawyers playing high profile roles in pushing for compensation for residential school survivors told Windspeaker this month.

This publication obtained a draft copy of the government's plan. Dated March 26 and entitled "Dispute Resolution Model for Indian Residential School Abuse Claims," the 41-page document reveals that the government has established a point system that adjudicators can use to decide how badly an individual was harmed and what that harm is worth in compensation.

The government recently announced that retired judge Ted Hughes had agreed to serve a two-year term as chief adjudicator. He will oversee a team of 32 full-time adjudicators.

Lawyer Darcy Merkur works on the national class action lawsuit being co-ordinated by Toronto law firm Thomson Rogers. Asked what he thought of the government's plan, the lawyer pulled no punches.

"The plan sucks. It is a way of taking advantage of survivors. The government goes around boasting that the majority of survivors who have made claims already will jump into this new proposal. And you know what? They might not be wrong," he said. "Because survivors have been through so much and have waited so long that they'd take almost anything they can get. But that doesn't make the proposal fair."

The government has arbitrarily decided that loss of language and culture are not things it is willing to compensate for, he said. That position will be challenged in court in the not-too-distant future, but Merkur believes the government is hoping to attract people who are anxious to put this part of their lives behind them to a plan that is tailored to suit only the government's needs.

"They don't pay for taking you from your parents, for depriving you of your culture and your language. But at the end of the model you have to sign off saying you'll never sue them again, especially for all that stuff," he said.

Those who sign the releases required in the ADR plan will no longer have a claim against the government, even if the courts decide the government had no right to simply declare it will not compensate for cultural harm.

"Even if the case law changes, you're out of luck. They're just taking advantage saying, 'You can't see forward but we want you to promise never to sue us for it.' How do you do that in one sentence?" he said. "It only compensates those were seriously physically and sexually abused and it's our belief that anyone who attended the schools ought to be compensated. That's what our class action's all about. We want a court to decide that everyone who attended was forced into these schools which were fraught with problems and that they deserve to be compensated."

So far there have been 11,500 lawsuits filed against the government that are related to the residential school system. If the class action lawsuit can get the idea approved by a court that simply having a residential school system in place was an attack on the civil and human rights of Aboriginal people, that number could almost double.

Regina lawyer Tony Merchant represents more than half of the residential school plaintiffs in Canada.

"As you say, they're going to be putting out movies and stuff that say the most you're going to be getting is $3,500. You know that their little pet adjudicators, whoever they've got, they're going to be saying, 'Well, the maximum for that is $3,500.' That's no system of fairness," he said.

Darcy Merkur was asked if he suspected that the government had targeted this area because it represented the largest area of liability.

"Based on the government's chart, yes. That's where a large number of the claims will be. In reality though, those people are some of the people who were more severely harmed," he replied. "Those are the people who've had the cultural impacts that the governmet's not compensating. They're saying, 'We prefer to pay these people a couple of hundred bucks and get this release that they're going to have to sign.'

"That's because [the government] is scared that we're going to get to court and the court's going to decide that the class action's right and survivors have the right to be compensated for the cultural impacts they've suffered. That compensation's worth tens of thousands of dollars. And the government's going to say, 'That's too bad because we've already got 10,000 people who we've paid $1,000 and they've gone away and they'll never be able to sue again.'"

Merchant thinks the entire concept of government-employed adjudicators is a bad idea.

"We don't do it that way. You go to the ordinary courts," he said. "Now sometimes you settle. And sometimes you agree on an arbitrator. But that's not what they're talking about. They're going to do all the selecting and hold over those people the threat of not being renewed and put them out to see how things go-pretty dangerous."

Both lawyers pointed to the amount of money that has been budgeted for the ADR proposal.

"They've put a global budget of almost $1.7 billion on the proposal and almost 50 per cent of that budget goes to administrative costs," said Merkur. "Like, can't you figure out a better system where the survivors themselves get the majority of the compensation in the budget? What are they doing? Do we need more bureaucracy?"

Merchant said the budget will allow the government to spend $750 million on administration and lawyers.

"That's $62,500 per claimant," he said. "They're saying they're going to spend $62,500 fighting every claim, which tells me that it's going to be a tough battle."

Merchant said he has learned that different parts of the country will have different caps on the top compensation available through the ADR process. British Columbia and Yukon claimants will be able to claim a maximum of $245,000. Anywhere else in the country, the top amoun available is $195,000.

"As a part of this area of trick and spin, the way they've got it planned is they intend to pay less money right down the line, whether it's the most serious at $195,000 in Saskatchewan instead of $400,000 or whether it's for somebody who has a lesser claim and they say 'We'll give you $3,500' when you might get $10,000 in the ordinary system."

Eric Pelletier, director of policy and communication for the Office of Indian Residential School Resolution, was asked about some of the lawyers' allegations.

He confirmed that the caps on compensation will be different in different regions.

"That's true. If you go to a court in Ontario or in Quebec or in Nova Scotia or in B.C. or in Saskatchewan, there's a chance that your award would be different," he said. "We based that on studying the settlements that were awarded by the different provincial jurisdictions. That's how we came up with the different figures. So depending on where your action's taking place, where your claim has been brought from, we'll use that compensation grid to compensate you based on where you were studying."

Pelletier said the government is hoping to attract a majority of claimants to the ADR process in order to speed up the settlement process.

"What we're hoping is that about 70 per cent of the 12,000 claimants will think that what we're offering is acceptable and will choose to participate in the new ADR process. For those whose case is much more complex, they will probably choose to go to litigation," he said.

When the discussion turned to the government's requirement that claimants sign a waiver and give up any chance to sue even if the case law should change in the future, Pelletier said that was being reviewed.

"You're talking about the release right now and it's an issue that, based on our discussion with the survivors and with the lawyers, that's an issue that we have decided to assess this summer with the hope that by the fall we'll come out with a reasonable ssessment and when we launch in the fall that issue will have been reassessed."

Was he saying there's a chance the release could be dropped?

"No, what I'm saying is that issue is being reassessed. We don't know at this point what the end result of that will be," he replied.

So there's a possibility it could be dropped, he was asked.

"To be very factual, if you're quoting me, say that's an issue that is being reassessed right now," he said.

Is getting rid of the waiver one of the things being considered, Windspeaker asked.

"There's always, when you go to litigation, a form of release. But what the scope and what the timing is, that's the issue that's being reconsidered right now," he said.