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Letter to Minister Carolyn Bennett related to the Federal Indian Day School Settlement

 

Sent by email

March 31, 2020


The Honourable Carolyn Bennett
Minister of Crown-Indigenous Relations


RE: Federal Indian Day School Settlement


Dear Minister Bennett,


An important part of my mandate as Federal Ombudsman for Victims of Crime is to identify systemic issues that negatively affect victims and survivors of crime. The Office of the Federal Ombudsman for Victims of Crime (OFOVC) also provides recommendations for the Government of Canada regarding its laws, policies and programs in an effort to be more responsive to the needs of victims and survivors.

Regarding the implementation of the settlement process for the Indian Day School Survivors, I am pleased to see that the claims process is proceeding; however, am not convinced that the process, as it stands, is fully serving the needs of Survivors, or their designate. 

While I understand that a 3rd party agency is managing the Indian Day School Survivors claims process, there is no information about the program on the home page of either the Crown Indigenous Relations or the Indigenous Services website. Therefore, those Survivors, or their designate, who have access to internet service cannot easily find the information, nor the updates, needed to fully participate in this process – a process which does not acknowledge that Indigenous cultures express themselves in an oral fashion and this is not available to Survivors to better express the harms they have suffered.

I recommend that both Departments include a brief explanation and a link to the 3rd party and legal services websites on their homepage websites until the deadline has passed. An explanation should be written in plain language and should prominently feature the information that assistance with completing the form is available free of charge. Localized assistance should also be made available, preferably with Indigenous persons familiar with the claims process and the tragic history of residential schools.

Other concerns OFOVC has with the claims process include:

  • are those individuals who interact with Survivors adequately trained in trauma-informed techniques?
  • what steps and resources are being provided to support those who are re-traumatized by this process and for how long are the supports in place?
  • how are Survivors, or their designate, being informed of the legal assistance resource available?
  • how is the GoC assisting with the provision of supporting school documents needed for the application?
  • how are Survivors, or their designate, being updated on their application?
  • are claimants being clearly informed in plain language why their application was rejected and if they have further recourse?

  
It appears that some Indigenous communities are taking the initiative to work with their members to help with completing the forms. This is resource-intensive and may stretch the capacity of local agencies.

It is likely that many traumatized Survivors would feel more comfortable working face-to-face with a community member, or Indigenous person, who knows them rather than working at long distance with a stranger who may be unfamiliar with their culture and circumstances. While I support that providing funds for this purpose is essential, directing a portion of those funds towards enhancing resources in communities might be a better way to serve victims' needs.

In the upcoming fiscal year, OFOVC with the help of Francyne Joe, former President of NWAC, is engaging with more Indigenous persons and communities across the country and it would be helpful to provide a clear response regarding the process. Dr. Nadia Ferrara, my Executive Director, brought this to your attention at the Indspire Awards last month, and I would like to meet with you, either virtually or in person, to discuss this issue at your earliest convenience. Please have Sarah, or your staff, kindly contact Karine Marcil at Karine.Marcil@ombudsman.gc.ca or telephone: 343-551-0290.

Sincerely yours,

Heidi Illingworth
Federal Ombudsman for Victims of Crime

 

Cc:  The Honourable David Lametti, Q.C., P.C., Minister of Justice and Attorney General of Canada
Nadia Ferrara, Executive Director, OFOVC

 


 



Response from Minister of Crown-Indigenous Relations:

Sent by email

 

 

May 7, 2020

Heidi Illingworth
Federal Ombudsman for Victims of Crime
heidi.illingworth@ombudsman.gc.ca

 

Dear Ms. Illingworth:

Thank you for your correspondence dated March 31, 2020, sharing your concerns with the Federal Indian Day Schools Settlement Agreement claims process. 

I would first like to clarify that the Federal Indian Day Schools Settlement Agreement is not a program administered by the Government of Canada. The Federal Indian Day Schools Settlement Agreement is a court approved settlement, which resolves a civil national class action, Garry Leslie McLean et al. v. Canada, to which Canada is a party. As per the terms of the court approved settlement, the claims application processes is being administered by a Court appointed third-party, Deloitte. This process was jointly developed by parties and approved by the Federal Court of Canada.

Through this negotiated settlement, compensation is being provided to thousands of former students for the harms suffered, including physical and sexual abuse, while attending federally-run Indian Day Schools. The settlement agreement was approved by the Federal Court on August 19, 2019 and implementation of the claims process began on January 13, 2020.

 

The terms of the settlement were negotiated with direct input from the representative plaintiffs in order to design a settlement that was reflective of all parties desire for a streamlined process to provide compensation for past harms. While being cognizant of the oral traditions of Indigenous cultures, the parties to the settlement recognize that any process that involves revisiting past abuses can have a re-traumatizing effect on survivors. Therefore, the parties are in agreement that that the compensation process would be paper-based and would not require survivors to testify in front of an adjudicator.

Below please find responses to the specific questions that you raised in your email:

Are those individuals who interact with Survivors adequately trained in trauma-informed techniques?

Gowling WLG, class counsel, and Deliotte, the third party claims administrator, have informed Canada that employees from both firms have completed trauma based training and work collectively with Hope for Wellness to support class members in crisis.
What steps and resources are being provided to support those who are re-traumatized by this process and for how long are the supports in place?

The parties to the settlement agreement continue to work diligently to ensure that appropriate health supports are in place throughout the claims process.

Individuals who may be impacted by the Federal Indian Day Schools Settlement can contact the Hope for Wellness Help Line, which offers immediate access to experienced and culturally-competent crisis intervention for Indigenous Peoples across Canada. The Hope for Wellness Help Line is available 24 hours a day, 7 days a week to help those that are in distress, having a strong emotional reaction or are triggered by painful memories. Counsellors can be reached by calling 1-855-242-3310 or connecting to the online chat at www.hopeforwellness.ca. Telephone and online services are available in English and French. On request, telephone counselling is also available in Cree, Ojibway, and Inuktitut.

Further, the Non-Insured Health Benefits programs also provide coverage for mental health counselling for eligible First Nations and Inuit clients. More information can be found on their website: https://www.canada.ca/en/indigenous-services-canada/services/first-nations-inuit-health/non-insured-health-benefits/benefits-information/mental-health-counselling-benefits.html.

 

How are Survivors, or their designate, being informed of the legal assistance resource available?

Legal services for all class members are offered free of charge by Class Counsel, Gowling WLG. Class members, or their designate, have been informed of the free services being offered by class counsel in a variety of ways.

Both the national Notice Plans have included a section that speak to legal services being available at no charge by Class Counsel. In addition, the first page of the claims form states that “Free legal assistance with the Claims Form is available from Class Counsel, Gowling WLG at 1-844-539-3815”. Further, both the websites for the claims administrator and class counsel provide information on the legal services available to class members.

Class members may retain non-class counsel to represent them, however, they will have to pay for these legal services themselves. Any fees that are charged to class members by non-class counsel must be approved by the Court.

How is the GoC assisting with the provision of supporting school documents needed for the application?

In support of an application, class members making a claim under Harms Levels 2-5 of the Federal Day Schools Settlement Agreement are required to provide a written narrative and various types of supporting documentation. This could include school records (such as report cards, class photographs, or letters from teachers or the principal) and health records (such as medical, dental, nursing, or therapy records). A narrative and supporting documents are not required for Harms Level 1 claims.  

If no supporting documentation is available, class members are required to provide a Sworn Declaration, included on the Part 6 of the Claim Form, in support of the allegations made. Part 6 is a Sworn Declaration where the applicant can declare that the information provided in the Claim Form is true to the best of their knowledge. This statement must be witnessed and signed by a Guarantor who must provide all information (such as where they work and their contact details) as required on page 12 of the Claim Form.

If class members remain interested in trying to locate copies of their historical school records they can file an Access to Information and Privacy Request online at: https://atip-aiprp.tbs-sct.gc.ca/. Crown-Indigenous Relations and Northern Affairs and Indigenous Services Canada’s Access to Information and Privacy Office is also supporting applicants who cannot file a request online.

 

How are Survivors, or their designate, being updated on their application?

Class members can contact the claims administrator, Deloitte, at toll-free:
1-888-221-2898 or by email at: indiandayschools@deloitte.ca to discuss the status of their application.

Are claimants being clearly informed in plain language why their application was rejected and if they have further recourse?

Yes, the independent claims administrator will provide class members with an explanation as to why their claim is rejected, or has been compensated at a lower level than they have applied to along with next steps on recourse. 

Again, thank you for taking the time to share your concerns. I hope that you find the above information helpful.

Sincerely,

 

Hon. Carolyn Bennett, M.D., P.C., M.P.