TORONTO — Legitimate cases of residential school abuse are going uncompensated under a class-action 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 formalistic, 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, Dan 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.
A spokesman for the oversight committee said its chairwoman, Mayo Moran, would not comment. Neither Shapiro nor Crown-Indigenous Relations Minister Carolyn Bennett responded to questions about the situation.
Note to readers: This is a corrected story. A previous version had incorrect first names for chief adjudicator Dan Shapiro and oversight committee chairwoman Mayo Moran.