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

Following a June 17Federal Court order, it is now easier for the former students of Indian and federalday schoolsto 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 beingofferedby Gowling WLG, the legal firm handling the settlement.Prior to thismotion, if day school survivors wanted independent legal representation, their lawyer wasrequired to first obtainpermission from the Federal Court to act on their behalf, and oftenhad no assurance their services would be paid for through compensation money.

The restrictions discouraged lawyers from taking on claimsand created "a barrier to justice" for the former students, said a Saskatchewan lawyerinvolved in the case.

"Itwas 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 onexperienced 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 theagreement with their client,detailingwhat percentageof the potential compensation moneythe lawyer will receive for their services.

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

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

Face-to-faceoption

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 withNaytowhow on her participation in the residential school settlement as well.

Nayhowtowsaid she believes that in some situations,independent lawyers will be more effective than Gowling's class counsel lawyersbecause they canoffer 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 lawyerface to face.I would recommend that to my relatives, too."

Naytowhowalso voiced concern about a lack of mental health supports in the processand said more consideration should be given to helping survivors cope with trauma, "rather than just giving them money."

Despite the out-of-pocket cost, Naytowhowsaid 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 gettingthan work with somebody I don't know."

Overcharging forresidential schools settlement claims

In consideration of the motion by Racine and Naytowhow, Justice Michael Phalennoted theefforts of the plaintiffs and Gowling WLGto 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 processandthe survivors'rights to seek their own legal counsel,said Phalen, according to the court documents.

Phalen alsooutlined that survivors must be made aware that free legal services are available prior to engaginganother lawyer, and that all of their lawyer'sfees and transfers of money still have to be approved by the court.