On the Law

By Vic Savino

FOR THE FIRST PERSPECTIVE

Greetings dear readers, from the center of central Canada. We are in the deepest depths of a Winnipeg winter... -40 Celsius wind chill, big blizzard blows off and on all day and all night. It is time for some reflection (and very cold comfort) on where the Residential Schools cases are going.

Just before Christmas, the Minister, Ralph Goodale announced the Government of Canada's "Alternative dispute Resolution" settlement initiative. This is the product of those meetings where Department of Justice lawyers fanned out across the country and met with victims' counsel, as we have written about previously. It will compensate only for physical or sexual abuse incurred at the hands of the various church caregivers.

Victims will be able to take their case to a less formal process than the courts. The victim gets to tell his or her story to a fact finder, who controls the proceedings. The "fact finders" will be mediators brought in and trained by the government. The fact finder will hear the story and tell the parties if he/she (the victim) has a compensable case within the guidelines of the federal policy. If so, then the parties can negotiate compensation. If the parties cannot agree on compensation then that issue can be referred back to a fact finder for determination.

Sounds OK so far? Well yes, that sets out some parameters and principles but the important thing is what does it cover and how consistent and fair is the settlement process? On that score, Ralph Goodale's policy fails the test. I am going to give you some real life (but unnamed) examples of cases that will illustrate quite vividly the utter failure of this policy to meet the test and on all three of the tests of coverage, consistency and fairness. On coverage, we already know that they will only recognize compensation for physical and sexual abuse that is proven to the satisfaction of a fact finder and not for loss of language and culture, not for providing such a rotten education and not for the loss of income over a lifetime without a decent education to get ahead with.

That's bad enough, but when you consider that even within the "core" coverage of physical and sexual abuse you have some abuse that is compensable and some abuse of exactly the same kind that is not compensable, the mind boggles. Victims who were abused by nuns priests and other "caregivers" will, if they make their case, be entitled to compensation. However, if a person was a victim of the exact same kind of abuse, but only at the hands of an older student, even if you do make your case, you would not be entitled to any compensation.

Does that make any sense to you? I am asking that question not only of you dear readers, but also, pointedly, to the Minister of Residential Schools Resolution. The Honourable Ralph Goodale, whose Saskatoon riding, I would have to guess, would have a substantial number of eligible voters who are Native.

The injustice of it all simply jumps off the page. Canada is liable because they did not adequately supervise and prevent their caregivers from abusing the students but Canada is not liable because it failed to adequately supervise and prevent abuse among the students? Come on Ralph, how does this make any sense? How is it consistent? How is it fair? You get a failing grade on all three counts, Ralph, and we haven't even begun to talk about the inconsistencies and unfairness between one form of settlement vehicle and another. There are, I am sure, hundreds, if not thousands of residential school victims who were victims of student on student abuse, especially sexual abuse and usually same sex abuse. Horrific and life traumatizing experiences... but not, in the opinion of Ralph's minions, compensable under Canada's policy.

I have said it before and I will say it again. This policy is a travesty. There is no reason on the face of this earth why one group of victims should get compensation for abuse and another group of equally abused victims receives nothing. To put it another way, this policy stinks to high heaven, Ralph. I guess you and your people would prefer for this very large group to join the national class action, and kick Canada's butt, but good.

And now here is another one. I have a client who is in the only available process at the moment (the ADR process won't be accepting applications till next spring, and that's an overly optimistic time frame). He's in the "Early Resolution Initiative" process and has completed his mini discovery. The government has a (low) offer on the table and is trying to beat this victim down. When we pointed out that their offer was way too low if you use the draft consolidated DR model compensation charts and grid discussed with plaintiffs' counsel at meetings this past summer, they had a surprise response. To my amazement, the Feds came back saying that they will not use the compensation grid negotiated between counsel and themselves as a basis for settlement in the ERI process because, they say those numbers developed for the ADR process cannot be used in the ERI process. The numbers that Canada is basing this stuff on results in much lower settlement values than will be given in the ADR process, whenever it gets going. This too is a travesty and fails all three tests. Remember that the ERI process is designed for the sick and the elderly, to try to deal with their claims before they die. This policy results in younger healthier people being entitled to much larger settlements than the old and the sick. Justify that one, Ralph. Why is it that you are prepared to make more generous settlements to younger healthier people than you are to the sick and the elderly? Where is the fairness in that? Where is the consistency between groups of claimants claiming for the same thing? And why is the "coverage" for the sick and the elderly something less than it is for younger healthier claimants? Shouldn't it be the other way around for those who are older and have suffered longer?

I know your people (and perhaps even you) read these columns, Ralph, as I recently got some comments to the effect that I was making it difficult for justice lawyers here to make me any decent offers as their people in Ottawa were steaming at my critiques of the unjustness, inconsistency and fundamental unfairness of this fundamentally flawed process. Well, too bad., I say. You don't like this kind of criticism then put a policy on the table that has adequate coverage, fairness and consistency, don't shoot the messenger.

Oh, and to be fair to the Office of Residential Schools Resolution and DOJ, in a recent column I had spoken of how long we had to wait for offers even in the ERI process... discovery done in June, still no offer in November. Well, that offer finally did come, like the day after we went to press, and that case is settled... (except, since the victim is so old and sick now we have to bring the settlement to a judge, get the judge to approve the settlement etc.,etc.) Sorry about that to the Justice lawyer who worked so hard to get that settlement through the minions in Ottawa.

The results thus far? One settlement in five years of litigation. We've got a long way to go, and refining out the crappy, unfair and inconsistent parts of the Minister's new policy should be job one. Here's looking at you Ralph. And good luck!

Vic Savino is a lawyer practising the law of Canada’s aboriginal Peoples at the law firm of Perlov Stewart Lincoln At Portage and Main In Winnipeg. He enjoys feedback and you can do that by e-mail to <vsavino@mts.net>.