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ADR process open to government pressure

Author

Paul Barnsley, Windspeaker Staff Writer, Ottawa

Volume

22

Issue

7

Year

2004

Page 11

Imagine a hockey game where one team gets to review every decision made by the referee and can then rewrite the rules to suit its own purposes even after the game has begun.

A well-placed source says that's going on right now in Canada with the alternative dispute resolution (ADR) process for survivors of residential schools.

One team can move the net whenever its opponent threatens to score. The team with the advantage is the federal government; the team without any advantage at all is made up entirely of Native people.

The source agreed to speak to Windspeaker on the condition that he or she not be identified, and works close to the federal government's ADR process set up by Indian Residential Schools Resolution Canada (IRSRC). The ADR was designed to provide a way for survivors to pursue compensation claims for physical and/or sexual abuse allegedly suffered in the schools without having to endure the confrontational atmosphere found in a courtroom.

Canada is faced with 12,000 residential school claims. About 700 of those claimants have opted for the ADR process.

Despite the fact that almost a year has gone by since Ralph Goodale, the minister then responsible for IRSRC, announced the ADR process, fewer than 50 cases have proceeded.

Several cases have been decided. We know that because several cases have been appealed.

The source said adjudicators know that the 80 or more Justice department lawyers working on residential school cases will closely examine every decision they make. Government can then re-write the ADR guidelines if a decision threatens to go in a direction that could end up costing the government more money.

And since the chief adjudicator, former Saskatchewan Court of Queen's Bench judge Ted Hughes, has not yet ruled on the appeals, the 38 adjudicators (of whom four are Aboriginal) don't know how much support they'll receive in the face of what insiders have no doubt felt is severe government pressure.

All the sources contacted for this story said the chief adjudicator is a man of impeccable integrity, but they worry nonetheless the process may be tilted too far in the government's favor.

Lawyer Darcy Merkur, with Toronto law firm Thompson Rogers, is working on the national class action lawsuit to have the government's arbitrary refusal to consider claims for loss of language and culture and other related claims overruled.

Merkur told Windspeaker that under the ADR rules, the chief adjudicator has "no significant rights to alter the process."

One appeal recently sparked outrage among the lawyers representing residential school survivors and their clients. The deputy minister of IRSRC, Mario Dion, asked the chief adjudicator to review a case where adjudicator Terrance Chin took a liberal view of the ADR rules.

He awarded $1,500 to Flora Merrick, an ailing 88-year-old woman who was strapped severely for running away from school after she was denied permission to return home to attend a parent's funeral. Even though lawyers and survivors saw the amount to be small-the government actually pays just 70 per cent of that amount or $1,050-the deputy minister raised a number of procedural complaints with the adjudicator's reasoning.

Merkur sees the appeal of the Merrick decision to be a government attempt to send a message to the adjudicators.

"With the appeal, the government is hoping, in my opinion, to show the adjudicators how strict the rules are. And these are rules written by the party being sued with no court supervision, and that is absurd," the lawyer said. "They're being shown they have no options. They can only assess credibility and award damages within a very strict set of rules. The system is fundamentally flawed and an enormous waste of bureaucratic time and money-tens of millions of dollars."

Windspeaker's inside source said adjudicators are being subtly intimidated by the fact that the Roman Catholic Church and the United Church, the to churches that ran schools that have not signed an agreement to pay a 30 per cent share of damage awards, are allowed to participate in ADR hearings. They do so on what is called an "ad hoc" basis, meaning they can attend as they see fit.

Adjudicators, our source said, are worried that a strong decision rendered against one of those churches will result in the churches walking away from the ADR process forever. That would mean that survivors who are awarded damage would not be able to collect 30 per cent of their just compensation.

And most adjudicators believe the survivors need and deserve a less confrontational forum to make their cases. Alienating the churches could mean forcing them back into court to seek full payment and defeat the whole purpose of ADR.

Darcy Merkur agreed, saying that problem is a "basic flaw in the process."

The lawyer called the government's claims to have created a more humane process "just a PR message" and "a scheme."

"They claim they wanted to create a more sympathetic process for the survivors. Well, the system doesn't compensate fairly but it is sympathetic," he said.

He said the analogy that the government reserves the right to move the net whenever the other side threatens to score is "100 per cent accurate."

"I'll give you an example. Adjudicators can only award damages for wrongful confinement as the government defines it. In their rules, it's not wrongful confinement if you're not alone. It's not defined that way anywhere else but that's the way it is in their rules. Miss Merrick was confined but she was not alone so there can be no finding of wrongful confinement," he said.

The source said the idea was that ADR would not resemble litigation but the fact remains that lawyers are involved. In some cases, survivors' lawyers say, there are several government lawyers in the room and that can be intimidating and distressing for their clients.

The source added that litigation lawyers are having a hard tim adjusting their attitude for a supposedly non-confrontational setting.

Several sources criticized the new prime minister for making progressive sounding speeches about Aboriginal issues while doing nothing to correct the ADR process.

"The Paul Martin government has shown no interest to deal with the issue fairly," said Merkur. "There's been a lot of talk but no action."

He warned that the process could backfire on the government down the road.

"Enough of this limiting liability game," he said. "It's just going to cost them more in the long run."