Cases of res­i­den­tial school abuse un­com­pen­sated be­cause of sig­na­ture rule

North Bay Nugget - - NATIONAL NEWS - Colin perkel

toronto — Le­git­i­mate cases of res­i­den­tial school abuse are go­ing un­com­pen­sated un­der a clas­s­ac­tion set­tle­ment be­cause the vic­tims died with­out sign­ing an ap­pli­ca­tion form, a sit­u­a­tion one lawyer calls ar­bi­trary and the fault of the fed­eral gov­ern­ment.

in at least one such case, com­pen­sa­tion was ini­tially awarded in March last year to rel­a­tives of a vic­tim but taken back after a re­view de­ter­mined the de­ceased ap­pli­cant had never signed the ap­pli­ca­tion form.

“this is so for­mulis­tic, it is re­mark­able,” said david Schulze, the lawyer han­dling the case. “the claimant meets the cri­te­ria, the abuse is proven, and yet the gov­ern­ment of Canada runs around say­ing: ’oh, but he didn’t sign him­self, so we can all agree our em­ploy­ees raped him but his heirs get noth­ing ’.”

Based on eye­wit­ness tes­ti­mony, an ad­ju­di­ca­tor un­der the in­de­pen­dent as­sess­ment process (iap) awarded $27,222 to the es­tate of a res­i­den­tial school sex­ual-abuse vic­tim known as a-16726, who had died with­out sign­ing the ap­pli­ca­tion form. While Canada raised ob­jec­tions about the lack of a sig­na­ture, it did not op­pose the claim.

how­ever, when the es­tate tried to ar­gue the com­pen­sa­tion amount was too low, a re­view­ing ad­ju­di­ca­tor over­turned the award al­to­gether.

“i must over­turn the ini­tial ad­ju­di­ca­tor’s de­ci­sion and sub­sti­tute a zero award,” Wes Mars­den, deputy chief ad­ju­di­ca­tor wrote in his de­ci­sion last July. “iap rules clearly state that the claimant must sign an iap ap­pli­ca­tion.”

even though other es­tate com­pen­sa­tion claims with­out sig­na­tures had pre­vi­ously been ac­cepted over Canada’s ob­jec­tions, Mars­den said he was sim­ply fol­low­ing de­ci­sions in two other cases by chief ad­ju­di­ca­tor, Ben Shapiro, from March and april last year.

on Sept. 6, Shapiro pub­lished the sig­na­ture-needed rule on the ad­ju­di­ca­tion sec­re­tariat’s web­site after a case in­volv­ing a dis­barred Cal­gary lawyer, david Blott. Be­cause of Blott’s neg­li­gence, scores of files re­lated to com­pen­sa­tion were never pro­cessed and more than 150 of them lay rot­ting in a ware­house for at least six years.

“it was deemed ad­vis­able to post a no­tice to our web­site ad­vis­ing that claims that did not meet the cri­te­ria set out in (one of Shapiro’s rul­ings) would not be el­i­gi­ble,” roger tetreault, ex­ec­u­tive di­rec­tor of the ad­ju­di­ca­tions sec­re­tariat, wrote last month. “to do oth­er­wise would po­ten­tially have worked an un­fair­ness by caus­ing fam­ily mem­bers of de­ceased for­mer stu­dents to in­cur sig­nif­i­cant ex­pense (on) claims that would be doomed to fail­ure.”

Lat­est data from the ad­ju­di­ca­tion sec­re­tariat show 59 of 78 es­tate claims not signed by the claimant were dis­missed — some for a lack of ev­i­dence — but it is un­clear just how many were re­jected based only on the sig­na­ture rule. re­gard­less, Schulze called the re­quire­ment un­con­scionable given that prov­ing an es­tate claim is dif­fi­cult enough.

Schulze, who is chal­leng­ing Mars­den’s de­ci­sion, said there is no ba­sis un­der the in­dian res­i­den­tial school agree­ment to deny es­tate claims as long as the vic­tim was alive as of May 30, 2005 and the claim was filed in time. the chief ad­ju­di­ca­tor, the lawyer said, had no au­thor­ity to come up with the sig­na­ture rule.

the lawyer has now asked an over­sight com­mit­tee, which Shapiro has said is the fo­rum to re­solve such dis­putes, to weigh in.

Newspapers in English

Newspapers from Canada

© PressReader. All rights reserved.