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Residential school survivors re-victimized

Thursday June 26, 2014

Nishnawbe Aski Nation and Grand Council Treaty #3 have raised concerns about residential school survivors being “victimized” over their compensation claims.

“Indian Residential School survivors acted in good faith when they agreed to take part in the Independent Assessment Process, and it is shameful that these survivors are once again being victimized,” said Deputy Grand Chief Alvin Fiddler, who holds the justice portfolio at NAN.

“We strongly agree that it is unconscionable that legal firms would seek to take advantage of survivors who suffered years of abuse. They have fought for years for the justice they deserve after losing their childhood, and they should not be robbed of their future.”

Justice Perry Schulman of the Court of Queen’s Bench of Manitoba stated in his June 4 decision on Fontaine et al. v. Canada (Attorney General) et al. that any agreements requiring residential school claimants to pay form fillers on a contingency fee basis or for services properly characterized as legal services are contrary to public policy and therefore void.

“Based on the proper interpretation of the Settlement Agreement and other governing law, and their application to the evidentiary record before this court, I find that any agreements requiring claimants to pay form fillers on a contingency fee basis or for services properly characterized as legal services are contrary to public policy and therefore void ab initio,” Schulman stated in his decision. “Agreements purporting to be assignments or directions to pay are also illegal and therefore void and unenforceable. I further find that apart from considerations of illegality, agreements to pay form fillers in circumstances of unequal bargaining power and where an improvident deal was made, such as the two examples in the record before this court, are unconscionable and therefore voidable at the instance of the claimants who entered into them.”

The Fontaine et al. v. Canada (Attorney General) et al. case was brought by the chief adjudicator of the Independent Assessment Process against Winnipeg lawyer Ken Carroll and the form-filler agency First Nations Residential School Solutions Inc. (FNRSSI) that Carroll was part owner of.

“Within the Treaty 3 territory we had the highest number of Indian Residential schools in comparison with any other part of Canada and as such for generations our communities, families and individuals have been severely impacted by the abuses and trauma, including misguided nutritional experiments on our relatives that attended these schools,” said Grand Council Treaty #3 Grand Chief Warren White. “While the Common Experience Payment and Independent Assessment Process offered an opportunity at recognition and reconciliation for harm to our IRS survivors, it is extremely painful to hear that victimization by ruthless lawyers has been perpetrated against vulnerable people who have had to endure a lifetime of pain and suffering. I encourage all IRS claimants who have questions or concerns about the manner in which their file, claim or compensation has been managed to come forward.”

Schulman ruled that all arrangements requiring IAP claimants to pay contingency fees to form-fillers are void, and that IAP claimants are under no obligation to pay fees for processing their claims. He ordered court officials to look for ways for students to recover any fees paid, and that all information related to arrangements between the former students, their lawyers and form-filling agencies must be provided to IAP adjudicators.

The Fontaine et al. v. Canada (Attorney General) et al.decision is available online at: http://www.canlii.org/en/mb/mbqb/doc/2014/2014mbqb113/2014mbqb113.html.

The Indian Residential Schools Adjudication Secretariat has also launched an investigation into a Kenora law firm Keshen and Major regarding loans and administration fees paid by IRS claimants during the settlement process.

NAN and Grand Council Treaty #3 are encouraging all IAP claimants who have questions about fees paid while settling their claims to call the Independent Assessment Process toll-free information line at 1-877-635-2648. Updates as more information becomes available will be posted on the Indian Residential Schools Adjudication Secretariat website at www.iap-pei.ca.


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