WARNING: If this information causes any crisis or distress, call the Indian Residential Schools Crisis Line at 1-866-925-4419

LEGAL RESOURCES

OVERVIEW

This section includes general information about legal resources that may be available for Indian residential school survivors and their families when considering their options under the Indian Residential School Settlement Agreement.  This information is not legal advice and should not be relied on as legal advice.  It is only provided for information purposes only.



The video was developed to provide claimants in the Independent Assessment Process with information about what to expect at their Independent Assessment Process hearing. The video explains the rights that claimants have under the Independent Assessment Process, and discuss the roles and responsibilities of participants at the hearing, and all parting to the Indian Residential Schools Settlement Agreement.

ISSUES TO CONSIDER WHEN HIRING A LAWYER

There are many lawyers in Ontario, but choosing the right lawyer for your claim to the Independent Assessment Process is very important.

It is important that you feel comfortable with the lawyer.  If you don’t feel comfortable with your lawyer, find another one.

You should not be pressured to sign a retainer with a lawyer right away.  If the lawyer you are meeting with is pressuring you into signing a retainer, do not sign anything and walk away.  A good lawyer will not force you to do anything if you’re not comfortable doing it. Remember that you are interviewing the lawyer to see if they will do a good job with your case.  Here are some questions that you should ask the lawyer:

  • How long has the lawyer been practicing law?
  • How much experience does the lawyer have with claims to the Independent Assessment Process, as part of the Indian Residential School Settlement Agreement?
  • How does the lawyer think your case should be handled?
  • What will the lawyer expect from you throughout the case?
  • How will the lawyer let you know what is going on with your case?
  • How can you contact the lawyer?
  • How is the lawyer expecting to be paid?

After meeting with the lawyer, giving him the information about your case, and asking him questions, you will be in a better place to make a decision about whether or not you want to hire that lawyer.  You should ask yourself the following questions:

  • Am I comfortable talking and being around this lawyer?
  • Does the lawyer have experience with claims at the Independent Assessment Process?
  • Did the lawyer speak with you in a normal language, or did he use legal language that you didn’t understand?
  • Did the lawyer explain the payment options clearly?

In addition to the questions above, make sure that you read the Guidelines below before making your final decision on which lawyer you will select to help you with your case to the Independent Assessment Process.

GUIDELINES FOR LAWYERS ACTING IN ABORIGINAL RESIDENTIAL SCHOOL CASES

The following is a summary of the Guidelines for Lawyers Acting In Aboriginal Residential School Cases, which were developed by the Law Society of Upper Canada (LSUC) for their licensed body who act for claimants in cases stemming from the Indian Residential School Settlement Agreement.

A copy of the Guidelines can be located HERE

These Guidelines were prepared specifically to meet the unique experiences and histories of Aboriginal peoples with regards to Indian residential schools.  They keep with the spirit of the LSUC’s Rules of Professional Conduct, in particular Rule 1.03(1)(b) which recognizes that lawyers have a special responsibility to recognize the diversity within Ontario, to protect the dignity of individuals, and to respect human rights law in force in Ontario.

General

  • Lawyers should ensure they are competent to act for a client who is dealing with any matters stemming from the IRS Settlement Agreement.  Being a “competent lawyer” means that a lawyer is able to recognize their limitations, has the ability to take on a matter, takes steps to ensure their client is appropriately served, performs functions carefully and timely and cost-friendly manner.  The “competent lawyer” should also avoid unnecessary delay, encourage their client to pursue quick resolution of claims, and pay close attention and care when representing elderly and/or ill claimants.
  • Lawyers acting for former students of Indian residential schools should be aware of the need to train their staff so that all members of their office are competent to provide legal services to clients.  Because of the sensitive and difficult nature of the files, employee assistance programs and counselling should also be available for staff.
  • Lawyers should try their best to understand and respect their client’s cultural roots, customs and traditions.  They should recognize and respect that their client may suffer from difficult past experiences, eg. from being removed from their parents, communities, cultures and traditions.  Throughout the legal process of bringing forward a claim within the IRS Settlement Agreement, the client will be required to relive their childhood abuse, and healing may need to be included in the client’s settlement.  Lawyers should be aware that their client may want more than money included amongst their remedies.

Guidance for Claimants’ Counsel

  • Lawyers should be aware of the unique circumstances with regards to a residential school case and respect their client’s need to heal throughout the legal process.  Lawyers should discuss and review support options with their client at the beginning and throughout the process.  Lawyers should recognize and respect the special nature of these types of cases and should help see their client’s healing process through, by:
    a.Finding and providing referrals to the appropriate community resources to help the client, including counselling resources;
    b. Referring their client to treatment programs, if requested;
    c. Referring their client to the mental health and emotional services available by the IRSSA, if the lawyer is acting for a client pursuing a claim with the IRSSA
    d. Recognizing and respecting the need of the client to develop a personal support network.
  • Lawyers should recognize and respect that Indian residential school cases are demanding on the lawyer and law office staff.  The legal issues are complicated,  emotional, The complicated legal issues, the emotional nature of Lawyers should recognize and respect that residential school cases place unique and heavy demands on the lawyer and their staff
  • Lawyers should make sure that new clients who are submitting a claim for the CEP or the IAP for the first time know about the IRSSA rules, legal processes, deadlines, and legal options.  Most claims being submitted in Ontario are through the legal processes by the IRSSA, but if lawyers are submitting claims through a class action, lawyers should make sure that their clients understands the impacts of participating in one legal process over another.  Lawyers should make sure that their clients understand that when they participate in the class action it will affect other legal rights that might be available to them, including the impact on possible claims available through legal procedures established by the IRSSA, the nature of the class action, and the need for a representative group of claimants from whom the lawyer will take instructions.  Lawyers should also make sure they have a good way of communicating information to all of their clients.
  • Lawyers should know how important it is to be sensitive in all of their interactions with their clients.  They should make sure that their legal services are culturally appropriate and they comply with Rule 3.01, especially Rule 3.01(2)(c) which prohibits unconscionable or exploitive ways in offering legal services to vulnerable persons or persons who have suffered a traumatic experience and have not yet had a chance to recover.  Lawyers should try to make sure that they are respectful with, and welcomed by, the claimant when they communicate with them to offer them their legal services.  Lawyers should be very careful and make sure that the way they communicate with the claimant will not cause any trauma to the claimant.  Lawyers might want to consider having community support people available for the claimant at their first meeting, and should know that some claimants might want to have a support person with them throughout the legal processes.
  • Lawyers should make sure that they make themselves available to their clients and that there are clear lines of communication between them and their clients.  Lawyers should recognize and respect the special communication needs that some clients might have, for example, language differences, cultural differences, and clients having limited access to a telephone.  Lawyers may have to consider hiring interpreters, if necessary.  Lawyer’s who write to their clients in a way that it is easily read and understandable.  Lawyers should also follow up with their clients to make sure that their clients understand the written letters and/or documents.  Lawyers should also communicate with their clients at all stages of the matter in a timely and effective manner that is appropriate to the age and abilities of their clients, as set out in Rule 2.01(1)(d).  This also means that lawyers should be clear with their clients about what the legal system can and cannot allow, and depending on the client’s circumstances, lawyers should include their clients in choosing the approach to gathering information that will support their claim.  Lawyers should also be ready to deal with a client’s progressive disclosure of issues related to the claim, given the emotional restraints that many claimants might experience.
  • Lawyers acting for claimants must comply with Rule 2.08 of the Rules of Professional Conduct and make sure that all of their fees and disbursements are communicated to the claimant in a way that the claimant understands.  Lawyers acting for claimants in the IAP run by they IRSSA shou ld make sure to tell their clients of the IRSSA provisions that talks about the claimant’s legal fees and disbursements in a way that is clear and understandable.  Seeing as the residential schools cases are a unique legal issue and that the claimants have unique needs, lawyers should make reasonable efforts to make sure that there is clear and understandable communication between them and their clients about the “lawyer/client relationshp”, the legal process including the settlement and alternative dispute resolution processes, the responsibilities of each the lawyer and the client, and the fees and disbursements.  Lawyers should also meet with their clients in person before establishing a lawyer and client relationship or accepting a retainer from a residential school claimant.
  • Lawyers should make sure that adverstising to claimants is done in good taste, and is not false or misleading, and that is complies with Rule 3.04 of the Rules of Professional Conduct.
  • Lawyers can enter into an arrangement with a claimant for a contingency fee, as long as it follows the Rule 2.08 of the Rules of Professional Conduct.  A contingency fee is an agreement where the client pays no fee upfront, and instead, will pay their lawyer with a percentage of the money awarded at the end of the legal process.
  • Lawyers should be sensitive to the emotional, spiritual and intellectual needs of their clients because this is important when giving legal services to the clients. Lawyers representing clients who have submitted claims should recognize and respect that many of these claimants have had control taken from their lives and were victims of child and sexual abuses, and because of this, should be regularly informed about and consulted as much as possible on the direction of their case.  Lawyers should make sure that they get instructions from their clients at every stage of the legal process.  Lawyers should also recognize and respect that for clients, interaction with lawyers and the legal process can be extremely stressful and difficult.
  • Lawyers should recognize and respect that their clients are often at risk of suicide and/or harm and/or violence towards themselves and others, and they should get the appropriate instructions and training for themselves and all staff members within their law office on how to deal with these types of situations.  Lawyers should be aware of available and appropriate resources and supports in order to make referrals when a crisis occurs and they are required to intervene on a serious issue.

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