Winnipeg Free Press - PRINT EDITION

Residential school survivors duped by shady lawyers

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WESTBANK FIRST NATION, B.C. -- I spent the last three years of my life travelling throughout western Canada talking with residential school survivors. As director of residential schools for a Winnipeg law firm, I spoke face to face with approximately 2,000 residential school survivors about their potential claims under the Indian residential school settlement agreement. They would line up by the dozens in band offices, health centres, recreation centres, schools and bingo halls from Thunder Bay to Whitehorse.

My hat is off to Daniel Ish, outgoing chief adjudicator of the Indian residential school adjudication secretariat. He endured six years of what was supposed to be a five-year process. The IRSAS compensates former students of Canada's Indian residential schools. The process was designed so that all former residents of approved schools would be paid a common experience payment (averaging $20,000) and those who suffered sexual abuse or a physical injury resulting from an assault would be entitled to additional compensation on a case-by-case basis (averaging $100,000). The result was that some of Canada's most vulnerable First Nations people, including the elderly, the homeless and the mentally ill were paid large sums.

Enter the lawyers.

Survivors who wished to make an additional claim had to find a lawyer to represent them at an informal hearing before a government-appointed adjudicator. These hearings were monitored under the auspices of Ish and his staff.

When the process began in 2006, only a handful of experienced class-action litigators processed these claims. What should have been a fairly straightforward (albeit emotionally trying) experience soon became a free-for-all. Lawyers were initially entitled to a payment of 15 per cent of whatever the client received as compensation, which was added above and beyond the survivor's payment. For more difficult cases, the lawyers could claim up to an additional 15 per cent to be deducted from the client's payment.

Many lawyers attempted to pad the bill on a simple legal process. Most cases were able to be concluded with only 40 hours' work split almost evenly by the lawyers and their administrative support staff. For this negligible workload, a single settlement of $100,000 could enrich the law firm up to $30,000. The reputable lawyers in the process limited their fees to the 15 per cent top-up provided by the IRS adjudication secretariat, leaving the survivor's compensation intact. Other lawyers got greedy.

Ish tried to discourage the charlatans from overcharging survivors not just on their legal fees, but also everything from outside matters, personal loans at outrageous interest rates and consultation prior to engagement of legal services through separate form-filling agencies. The system was designed with the assumption that the lawyers would be honest and fair-dealing. Was the process guilty of cliché?

The legal profession soon exploded with every "Mom-and-Pop" law shop which had ever so much as rubber stamped a real estate transaction trying to find a First Nations person to represent. Inexperienced lawyers began trying to claim for ineligible incidents of abuse, psychological effects not relating to abuse and even for individuals who did not attend a qualifying residential school.

It was Ish's job to ensure that the standards and practices of the settlement agreement were met and to review appeals. The job soon came to encompass analyzing fees, reviewing appeals of fee decisions and investigating unfair practices. The one group of people, Canadian lawyers, who should have formed the foundation of his administration, became his greatest headache. With the investigation and subsequent disbarring of Winnipeg lawyer Howard Tennenhouse, the expulsion of Calgary lawyer David Blott from the IRSSA, the investigation of Vancouver lawyer Stephen Bronstein and many others, Ish's job became that of policing his own colleagues in the legal profession.

Although many will criticize Ish for the results of what became a flawed process, First Nations culture dictates that a person be judged based on his or her intentions. Although he may have made enemies of the disreputable lawyers, he has become a friend of First Nations people, especially residential school survivors. Good luck in your future endeavours, Mr. Ish, you have certainly earned it. As a First Nations person and the descendant of a residential school survivor, I thank you.

Frank Busch is director of information and marketing, First Nations Finance Authority.

--Troy Media

Republished from the Winnipeg Free Press print edition March 23, 2013 J11

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