Day school settlement has paid out $5.7B in claims. A Supreme Court petition says survivors were shortchanged

WARNING: This story con‐ tains details of experiences at Indian day schools.

A Cree survivor of the fed‐ eral Indian day school system is asking Canada's top court to intervene in a multibilliondollar settlement agreement amid allegations survivors have been shortchanged and retraumatized by the com‐ pensation process, CBC News has learned.

Jessie Waldron, 65, fought and lost to the federal gov‐ ernment before the Federal Court in 2021 and the Feder‐ al Court of Appeal in January 2024 for the right to amend her compensation claim with additional evidence of abuse.

Now she wants the Supreme Court of Canada to step in because she says the government, the claims ad‐ ministrator and the law firm that struck the 2019 settle‐ ment agreement on behalf of survivors have failed to rep‐ resent their best interests.

Lawyers for Waldron, who attended the Waterhen Lake Indian Day School in northern Saskatchewan in the 1960s and 1970s, filed a leave to appeal with the top court on Friday.

The case pits Waldron against the federal govern‐ ment, Deloitte - the auditing and consulting firm ap‐ pointed to administer the settlement - and Gowling

WLG, the law firm that repre‐ sents survivors within the agreement.

Waldron told CBC News she was overwhelmed by the claims application and only filed for the minimum $10,000 compensation, even though her lawyers say she was potentially eligible for up to $150,000 based on suffer‐ ing she endured at day school.

"I felt traumatized again, victimized again," Waldron said. "Humiliated."

WATCH | Turning to Canada's highest court:

Waldron said she could never get through the legal hotline set up to help sur‐ vivors with the process. At one point, she drove 10 hours from her home in Grand Prairie, Alta., to Water‐ hen Lake, Sask., for a sched‐ uled community visit with lawyers from Gowling. But when she arrived, she found out the meeting had been cancelled.

"I was angry," Waldron said.

Waldron attended the day school, which was 370 kilo‐ metres northwest of Saska‐ toon, from kindergarten until Grade 6. As one example of what she suffered, Waldron said she was forced to under‐ go painful teeth extractions at the school without her parents' consent.

"They just opened our mouths and just held us down," she said.

"They started pulling my teeth out before they even froze."

To this day, Waldron said, she has difficulty going to the dentist and now warns staff before procedures about the trauma she experienced.

Expediency, cost over‐ shadowed needs of sur‐ vivors, lawyer says

Waldron hired her own lawyer, Nicholas Racine, to resubmit her claim, but De‐ loitte refused to consider it.

Racine said it's important for the top court to hear Wal‐ dron's case because day school survivors need more flexibility built into the settle‐ ment.

"These aren't insurance claims," said Racine, who works for Bergerman Smith LLP in Saskatoon.

"These are claims dealing with real people who are vic‐ tims of abuse as children."

WATCH | Canada's former attorney general weighs in:

Racine said he's been con‐ tacted by hundreds of other claimants who filed for the lowest category of compen‐ sation because they couldn't understand or get any advice on how to apply for the high‐ er levels.

He said they didn't get help from Deloitte or Gowl‐ ing, the Ottawa-based inter‐ national legal firm that re‐ ceived $65 million to admin‐ ister the deal, and haven't been able to resubmit their claims.

"Expediency and cost-ef‐ fectiveness overshadowed what was really important," Racine said.

It could take a few months for the Supreme Court to de‐ cide whether to hear Wal‐ dron's case.

Lead plaintiff wants re‐ view of settlement

Day school survivors were shut out of the $1.9-billion In‐ dian Residential School Set‐ tlement Agreement brokered in 2006.

More than 150,000 First Nations, Métis and Inuit chil‐ dren attended residential schools, while approximately 200,000 were forced to at‐ tend nearly 700 federally op‐ erated day schools for more than a century.

Unlike residential school survivors, day school studen‐ ts remained in their commu‐ nities and went home in the evenings, but they suffered similar abuse and faced cul‐ tural assimilation.

In 2019, the Federal Court approved a $1.47-billion set‐ tlement agreement as a re‐ sult of a class-action lawsuit by day school survivors.

The settlement was meant to avoid adversarial hearings with federal lawyers questioning survivors, like In‐ dian Residential School Set‐ tlement Agreement.

Under the day school set‐ tlement, all survivors had to do was fill out a form.

From the beginning, Mar‐ garet Swan, one of the lead plaintiffs of the class-action that led to the settlement, heard concerns.

"Deloitte was not very em‐ pathetic, respectful or under‐ standing," Swan said.

"They, in fact, were inter‐ rogating our people."

Swan said many survivors were also unaware they could get help from Gowling through a hotline.

She said she amassed hundreds of complaints from survivors and shared the feedback with Gowling and the federal justice minister, but hasn't heard back.

"It's difficult to hear peo‐ ple's experiences and even more so when you know they're being revictimized through a process that we thought would be fair, just and empathetic," Swan said.

"And I was part of setting that up."

Swan is calling for an in‐ dependent First Nations-led review of the settlement, and other settlements involving Indigenous survivors of the abuse.

Most claims filed for least amount of com‐ pensation

Under the agreement, sur‐ vivors could apply for five lev‐ els of compensation, ranging from $10,000 for verbal and physical abuse at Level 1 to $200,000 for repeated sexual abuse. Each level of claim re‐ quired more detail and cor‐ roborative evidence.

The federal government set aside $1.27 billion for Level 1 claims - the lowest amount - and agreed to pay all higher levels of compen‐ sation awards. A legacy fund of $200 million was also set aside to support wellness and cultural projects for sur‐ vivors.

Out of 184,969 claims filed, 129,715 were for Level 1 abuse claims and 53,851 for levels two to five, ac‐ cording to a Feb. 5 update from Deloitte.

So far, 148,733 claims have been paid, totalling $5.7 billion, according to Crown Indigenous Relations.

A majority of claims 110,885 - were paid at the lowest level of compensation, and 37,848 at levels two to five.

Waldron's lawyer, Carl Swenson, who filed the appli‐ cation for leave to appeal with the Supreme Court, said the disproportionate number of Level 1 claims compared to the other categories raises red flags.

Swenson has completed more than 500 claims for sur‐ vivors, and said well above 80 per cent involve Level 4 and 5 abuse categories.

"When people sit down and talk about bullying, the straps, I can't see how that many people could be level ones," said Swenson, who works at CHS Law in Saska‐ toon.

WATCH | What went wrong:

CBC News put the issues to David Lametti, who was the federal attorney general when the settlement was ap‐ proved.

"There's serious con‐ cerns," said Lametti, who now works at the Fasken Martineau Dumoulin law firm in Montreal.

Lametti said his govern‐ ment had good intentions when it decided to settle in‐ stead of continuing litigation. He said the government tried to simplify the claims process to avoid triggering trauma.

"It's not a perfect process, but we thought we had im‐ proved it," Lametti said.

"To the extent that mis‐ takes were made, and cer‐ tainly mistakes were made, hopefully we get it better next time."

Ottawa considered re‐ placing Gowling as class counsel

Both Gowling and claims ad‐ ministrator Deloitte declined CBC's interview requests. The firms answered email ques‐ tions through Castlemain, an Indigenous advisory group co-owned by the communica‐ tions firm Argyle.

When asked how Deloitte and Gowling respond to con‐ cerns CBC News heard from survivors, a spokesperson for Castlemain said the firms wouldn't comment "on thirdparty views" about the courtapproved deal.

To date, Ottawa has paid Deloitte $115.4 million for the administration of the deal, according to Crown-In‐ digenous Relations.

Gowling received $55 mil‐ lion for its work on the settle‐ ment and $7 million to offer legal services for claimants over a four-year period.

But CBC News has learned that Gowling plan‐ ned to end its free legal ser‐ vices for claimants by Jan. 14, 2024, unless it received an additional $6 million over three years.

Ottawa offered $3 million over two years and the two sides clashed before the Fed‐ eral Court.

"It's difficult to see why so much money is required at this time," said Catharine Moore, senior general coun‐ sel for Justice Canada, in an audio recording of a Dec. 5, 2023, case conference hear‐ ing provided to CBC News by the Federal Court.

Moore also said the feder‐ al government was consider‐ ing replacing Gowling with an Indigenous-led firm.

A compromise was reached between the federal government and Gowling giv‐ ing the law firm an additional $3 million to extend legal ser‐ vices until July 13, 2025.

Jasminka Kalajdzic, a law professor and founding di‐ rector of the class action clin‐ ic at the University of Wind‐ sor, questions why a similar openness to revising the set‐ tlement agreement wasn't given to class members.

"It's that flexibility that I would have liked to have seen when Ms. Waldron, for example, asked for relief when it came to filing an amended claim form," she said.

Ottawa will 'learn from this,' minister says

The settlement is also facing

aseparate legal challenge be‐ fore the Federal Court of Ap‐ peal from survivors seeking to reopen and extend the ap‐ plication deadline, which en‐ ded on Jan. 13, 2023.

The case was launched by the elected council of Six Na‐ tions, a Haudenesaunee community near Hamilton, Ont., and day school survivor Audrey Hill, who had trouble accessing records to support her claim during the COVID19 lockdowns. The process also resurfaced her buried trauma.

"I had a block," said Hill from Six Nations of the Grand River.

Her lawyer, Louis Sokolov, also helped file Waldron's leave of appeal application with the Supreme Court.

"These settlements are premised on reconciliation," said Sokolov, who works with Sotos LLP in Toronto.

"We think that the Supreme Court of Canada should tell us what that means in the context of In‐ digenous class-actions."

Crown-Indigenous Rela‐ tions Minister Gary Anan‐ dasangaree said he's only aware of one complaint about the settlement, which he brought to the attention of class counsel.

He said the agreement is supposed to be survivor-cen‐ tric and committed to ad‐ dressing any issues that come up.

"Is it perfect? I don't be‐ lieve it is," Anandasangaree said.

"We will learn from this.… Individual claimants are sup‐ posed to get the maximum they're entitled to."

Health support services for survivors and others im‐ pacted by the federal day school system can be found here.

Crisis intervention ser‐ vices are available through the Hope for Wellness Help Line, which is available 24 hours a day, seven days a week through the toll-free line 1-855-242-3310 or online chat.