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Few residential-school survivors succeed with Complete income-loss claims

30 Nov 17
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The settlement agreement signed a decade ago with the survivors of Indian residential schools provided compensation to former students who lost jobs because of the trauma they endured as children. But fewer than 20 individuals have successfully claimed that cash.

As the Independent Assessment Process (IAP) made to compensate individuals who survived physical, sexual or psychological abuse in the schools winds down, some people question whether individuals who had been scarred by their experiences in the church-run associations are treated fairly.

Former pupils making an income-loss claim under the IAP were encouraged to choose one of two tracks. The consequential loss of chance (CLO) track required no supporting documents to establish injuries. The actual revenue loss (AIL) track entailed more invasive questioning and a greater burden of proof that a survivor’s inability to retain employment could be attributed to abuse in the schools.

A thriving AIL claim could add up to $250,000 to the basic compensation payout, which averaged $91,713.

Amounts given this week to The Globe and Mail from the adjudication secretariat of the IAP show only 18 of the more than 38,000 people who say they were mistreated at the colleges have successfully maintained for real revenue loss.

Most survivors went directly to attorneys to make their claims, but some used form-filling firms which were started to help survivors with the reparation procedure. A Winnipeg man whose family ran this type of company states the amount of successful AIL asserts was so small because it was easier for attorneys and more economical for the government when Australians didn’t press for the larger sum.

“The lawyers were the ones who benefited over the survivors” by opting to get a faster but smaller claim, William Aitken said.

In addition, he says the IAP secretariat told his company it was submitting a lot of claims for loss of revenue.

Phil Fontaine, the former leader of the Assembly of First Nations who had been instrumental in obtaining the settlement agreement, stated he doesn’t understand why obstacles were put in the way of survivors who wanted to claim for lost income.

“It is pretty obvious that this was one of the results of abuse and we expected that there are a substantial number of those applying under the IAP” for real revenue loss, Mr. Fontaine said in an interview.

David Paterson, a Vancouver lawyer who sat on the subcommittee of the IAP oversight committee that decided what was intended from the income-loss supply of this settlement agreement, stated “the adjudicators have interpreted that provision very, very narrowly.”

Kathleen Mahoney, a law professor at the University of Calgary who helped draft the settlement, and it has worked for survivors making claims, said applying to the AIL track “was quite a steep hill to climb.”

The survivors would need to show that a connection between their inability to hold a job and the misuse was likely, not just plausible, and the adjudicators could use the same standards of evidence for a court of law, Prof. Mahoney said. The claimants also would need to demonstrate a resurfacing of the injury disrupted a proven pattern of earnings.

Given that the income of residential-school survivors will not be high, “your real loss of earnings, if you could go through all those hoops, may not be enough to justify all of the effort that it is going to take and the delay that is likely to lead to them getting their reward,” Prof. Mahoney said.

Mr. Aitken said many survivors were convinced not to apply for reduction of revenue.

The form-filling firm he ran with his father, Allan, helped survivors file their reimbursement claims and subsequently passed the claims on to attorneys for the adjudication procedure.

Whenever a college survivor said they lost income because of injury, the Aitkens filed a claim for real revenue loss. They would compile the files required and allow the adjudicators determine whether the claims were fair.

But officials in the IAP secretariat “really lined up a telephone call [in July, 2009,] together with my dad and one of the attorneys that we were working with in the time and they said it was about the number of claims that we were filing with real revenue reduction,” Mr. Aitken said. “And they efficiently requested us to stop and change it over to lack of chance. They said it would slow down the process.”

Shortly after that conversation, the attorneys working with the Aitkens switched their promises from real revenue loss to loss of chance, Mr. Aitken said. The files provided by the IAP reveal that 48 of the 91 claims for AIL in 2009 were removed and one was successful.

Dan Shapiro, the chief adjudicator of the IAP, chose not to be interviewed for this story, but issued a statement saying his secretariat hasn’t discouraged claims for real revenue loss. Rather, he explained, the secretariat has provided advice to claimants to make sure that, if they go that route, they are aided by experienced personal-injury attorneys and understand the legal and psychological risks.

Mr. Aitken said he considers attorneys or AIP adjudicators persuaded many survivors to not document, or to leave, claims for real revenue loss and take less reimbursement than they deserved. The mindset of the IAP and the authorities toward the claims, Mr. Aitken said, was, “Let us bang out these like widgets and use a short-form choice.”

Courtesy: The Globe And Mail

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