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Lawyers accused of ‘greed’ in taking fees from residential-school survivors

In this handout photo, students are seen in a Northwest Territories classroom within the Fort Resolution Indian Residential School system, a program which has spurred over a decade of reparation cases.

A Saskatchewan lawyer says the law society in his province is turning a blind eye to lawyers who were given thousands of dollars in fees from people abused at Indian residential schools without doing the amount of work that he says would warrant that kind of money.

Doug Racine of the Aboriginal Law Group based in Saskatoon has expressed concern since last spring to the Law Society of Saskatchewan about what he says are the "unethical practices or greed" of many lawyers who handled claims under the Canada-wide Independent Assessment Process, a case-by-case, out-of-court resolution process. He outlined his concerns in a nine-page letter to the law society on Sept. 1 but, as of late last week, said he has still not received a formal response.

"This whole country is, right now, trying to grapple with what happened in Indian residential schools," Mr. Racine said in a telephone interview. There have been outstanding leaders in that effort, including Tragically Hip front man Gord Downie, he said. But the Law Society of Saskatchewan, Mr. Racine said, has not been a leader. "Almost everything that they did or didn't do militated against reconciliation."

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Read more: To honour Gord Downie, we must take up his last work: reconciliation

Mr. Racine does not have access to the statistics to know how widespread the problem is across Canada, but he is well-connected to lawyers who have handled claims, and based on his discussions with them and with Indigenous clients, he believes there have been many cases.

Mr. Racine said the most egregious cases of lawyers unfairly taking money from the claims of residential-school victims occurred in the early years of the Independent Assessment Process (IAP), which was established in 2007 under the Indian Residential Schools Settlement Agreement (IRSSA) to compensate former students of the schools who suffered physical or sexual abuse. At some point around 2012, he said, adjudicators began clamping down on excess fees.

But, Mr. Racine said that even though years may have passed since former students saw their lawyers unfairly deduct money from their claims, he wants the law society to investigate the complaints of any victims who step forward.

And, he said, he wants the Law Society of Saskatchewan to appoint someone to review the way the legal system in his province handles cases involving Indigenous people just as the Law Society of Upper Canada has appointed Ovide Mercredi, the former head of the Assembly of First Nations, to play that role in Ontario.

Mr. Racine worked for a time as an adjudicator for IAP claims, but quit and began representing the claimants as a lawyer because he was concerned that they were being treated disrespectfully by other lawyers.

In his letter to the Law Society of Saskatchewan, Mr. Racine uses data provided by the Indian Residential Schools Adjudication Secretariat to show that the average payout to abuse survivors under the IAP was $91,753. The federal government paid lawyers an amount equivalent to 15 per cent of those awards, which means they received an average of $13,756 for every successful claim.

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In addition to the money paid by the government, the lawyers could also ask IAP adjudicators to award them an additional 15 per cent that would be deducted from the compensation received by their clients. That was supposed to happen only in the most difficult or time-consuming cases.

But Mr. Racine said he knows from conversations with adjudicators and with many unsatisfied claimants that lawyers regularly asked for and received the additional 15 per cent, bringing their total award to 30 per cent of their client's compensation. It is something that was particularly commonplace in Saskatchewan, Manitoba and Alberta, said Mr. Racine, who has worked with claimants in every province in the country except Newfoundland, Nova Scotia and Prince Edward Island.

Based on his handling of roughly 1,500 claims, Mr. Racine said most of them take about 2 1/2 days of a lawyer's time to process. The lawyers for his firm agreed, he said, that the 15 per cent paid by the government was more than adequate compensation and that taking the extra 15 per cent was "nothing short of gouging."

The Law Society of Saskatchewan said in an e-mail on Thursday that the IRSSA allowed lawyers to receive an additional 15 per cent beyond the settlement the government awarded to their clients and that it does not have the jurisdiction to review that decision. The law society referred additional questions to the IAP secretariat.

Dan Shapiro, the chief adjudicator of the IAP, said it is rare for lawyers to be given payments equal to 30 per cent of their clients' awards. From the start of the IAP until 2016, the average fees awarded were just in excess of 18 per cent, and from 2013 to 2016, they averaged between 17.5 and 17.8 per cent, he said.

"Our efforts to protect claimants in the IAP from unethical lawyers have been paramount," Mr. Shapiro said.

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Mr. Racine said he and Mr. Shapiro appear to agree that, as the IAP wore on, more adjudicators refused to award the extra 15 per cent. If Mr. Shapiro had provided statistics from the first years of the process, Mr. Racine said he believes they would support his claim that the extra 15 per cent was being granted on a regular basis.

"What [Mr. Shapiro] also fails to mention is the fact there were three law firms, including myself, [that handled large numbers of cases] that were not charging the extra 15 per cent," he said. "Take those law firms out of the calculation and what you will find is that the abuse was much more significant than what he is alleging. In any event, the mere fact these law firms were asking for the extra 15 per cent in my view was often unethical."

David Schulze, a Quebec lawyer who has handled a number of IAP claims, does not agree that it was wrong to charge more than the 15 per cent paid by the government. Mr. Schulze said he respects Mr. Racine but that doing a good job sometimes required working far more hours that the government's 15-per-cent payment covered.

Trips to remote regions were often required in IAP cases, he said; it was commonplace to meet three or four times with a client; and there were many documents that needed to be collected.

"When you see a lawyer who does a sloppy job on a simple case and wants to collect 30 per cent, I absolutely agree it's infuriating," Mr. Schulze said. "But when you see a lawyer who loses a complicated case because he is figuring 'Well, I will only get 15 per cent, I don't want to do the extra work,' that's infuriating too."

Eugene Arcand, a survivor of the Indian residential schools who lives in Saskatchewan, said the idea that lawyers were given fees that they may not have deserved from the compensation awarded to residential-school victims is not news to him or to others who filed claims under the IAP.

"We have been saying this all along that this what was going on. But nobody listens," Mr. Arcand said. "It's revictimization, that's what it is, and taking advantage of the wounded and the weakest."

Video: Regina residential school cemetery designated a heritage site (The Canadian Press)
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About the Author
Parliamentary reporter

Gloria Galloway has been a journalist for almost 30 years. She worked at the Windsor Star, the Hamilton Spectator, the National Post, the Canadian Press and a number of small newspapers before being hired by The Globe and Mail as deputy national editor in 2001. Gloria returned to reporting two years later and joined the Ottawa bureau in 2004. More

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