Federal Court approves settlement agreement in Day Schools case

The settlement agreement in a class-action lawsuit launched by former students of Indian day schools has been approved by the Federal Court.

According to multiple media reports, the settlement agreement was approved Monday. Under the terms of the settlement, survivors will be able to apply for individual compensation for harm, including physical and sexual abuse, linked to attendance at one of the federally-run institutions.

The class action was launched by Garry McLean in 2009.

The settlement includes compensation for eligible survivor class members ranging from $10,000 to $200,000 based on the level of harm experienced. It also includes the creation of a Legacy Fund of $200 million to support commemoration projects, health and wellness projects and language and culture initiatives.

To be eligible for compensation, a person must have attended at least one of the Federal Indian Day Schools of Federal Day Schools funded, managed and controlled by Canada.

The list includes day schools in Ahtahkakoop, Beardy’s Big River, Black Lake, Canoe Lake, Duck Lake, Fond de Lac, James Smith, (Fort A la Corne and James Smith Central, Kinistino, Little Red River, Mistawasis, Muskoday, Big River, St. Loius (Patuanak English River School), Stanley, Sturgeon Lake, and Pelican Narrows. The full list is available at indiandayschools.com.

Class members have 90 days to opt-out of the settlement by removing themselves from the Class. Those choosing to opt-out of the settlement will receive no compensation but will retain the right to bring an individual claim against Canada for harms suffered. Anyone choosing to opt-out must complete and submit the opt-out form by November 18, 2019.

Once the claims process has started, class members will have two and a half years to complete the Claims Forms.

Not everyone, though, is satisfied with how the settlement turned out.

In April, lawyers representing several groups and individuals argued in Federal Court to seek better terms for the agreement.

 While some support the agreement in principle as a positive step, other survivors of abuse insist that the details and specifics contained in the 227-page agreement need more work. Seven Ind9genous organizations are seeking intervenor status to allow them to put forth their concerns, including a better approach to reconciliation.

From the last 1800s through to the 1990s, First Nations, Métis and Inuit Day School students were forced to attend federally-run institutions across the nation.

“Many suffered physical, sexual, and psychological abuse, as well as neglect and assimilation practices,” a press release said.

“The pattern of abuse, neglect and assimilation was similar to the abusive treatment suffered by the survivors of Indian Residential Schools, who succeeded in negotiating a historic settlement agreement in 2007, which provided not only for compensation but also for the Truth and Reconciliation Commission.”

Day schools were similar to residential schools, a key difference being that day school students were allowed to return home at the end of the day, whereas residential school students stayed at the school for most of the year.

The number of Day School survivors involved in the recently-announced settlement is in the range of 140,000, about three times the number of Residential School survivors.

FSIN objects several terms in the agreement, including the deadline for survivors to apply for compensation. Residential School claimants were allowed a five-year timeline.

Another complaint cited is that the deadline and process do not take into account or fully appreciate trauma and impacts suffered by survivors. That includes the short deadline and “onerous” paper application requirements the intervenors say will prevent survivors from obtaining justice.

The paper application process, it is being argued, also does not provide the opportunity for former day school attendees to chose their own “trusted and culturally competent” legal counsel to assist them with the application process. It also doesn’t provide support for mental health or cultural support, the press release said, contrary to what was in the residential schools agreement.

“As well, the evidentiary burden required to support or validate a claim further reduces the likelihood that survivors will be able to navigate this on their own. As a result, many will abandon their claim. The Day School Settlement Agreement also provides for a very limited appeal process for claims that are denied, which fails to meet due process requirements and is procedurally unfair.”

Groups are also arguing that the paper application process misses the opportunity for storytelling by survivors.

“This storytelling is essential to Indigenous culture, healing and restoration,” the press release said.

“A streamlined, culturally sensitive, and respectful process designed to assist survivors in telling their stories would simplify the claims process, and also provide acknowledgement and restoration, resulting in lasting benefits not only to survivors but to their families and communities.”

Gowling, WLG the firm that negotiated the settlement, argued the simple, paper-based process means survivors don’t have to hire a lawyer to submit their claims. They also said the absence of hearings saves survivors from having to go on a witness stand and be cross-examined about their stories.

The firm says the one-year deadline also reflects what survivors want, as it should get eligible survivors compensation more quickly.