Rejected residential school compensation cases in North to be reviewed, says lawyer

Steven Cooper, a lawyer who has represented many former students, says 10 to 20 cases from the North that were disqualified from compensation will be part of an internal review of 1,000 cases nationally.

Steven Cooper says 10-20 cases will be subject of internal review by lawyers

Steven Cooper, an Edmonton-based lawyer who has represented many former students, says 10 to 20 cases from the North were rejected by the Independent Review Process. (CBC)

The federal government's announcement that it will look into rejected residential school cases is giving hope to some people in the North.

This week, Minister of Indigenous and Northern Affairs Carolyn Bennett said her department will look into the cases of about 1,000 residential school students who have been disqualified from compensation by a technicality.

The issue centres on an administrative split created when the federal government took over the operation of some residential schools and left other institutions in the control of religious groups.

While northern institutions weren't affected by that split (all were federally run), some applicants had their claims denied during the Independent Review Process.

Steven Cooper, an Edmonton-based lawyer who has represented many former residential school students from the North, spoke with The Trailbreaker host Loren McGinnis about those cases.

This interview has been edited and condensed.

Can you give us an example of a Northern case that was rejected by the federal government?

Probably the most egregious, really the worst rejection that I've had to deal with personally, was an incidence of a serious sexual assault that took place in a northern institution. The facts in a nutshell were that the rape took place in an igloo, just a snow house that the kids had built, and the question revolved around whether the occurrence had happened on a residential school premises or not.

In the end, it was fairly obvious that it took place probably two or three feet on the wrong side of the property line. That really is a good example of a bad outcome. Literally had the assault taken place three, four, five feet to the left it would've been on the premises and would've been covered, but in that instance compensation wasn't paid.

The vast majority of rejections have to do with geography when it comes to the North, and it's really quite unfortunate — they are technicalities. But in fairness, the way that the agreement was negotiated by me and many other lawyers back in 2005 provided certain parameters for compensation.

What was it like in the courtroom when the lawyers for the federal government were making the arguments against compensating that student?

In fairness, the frontline workers, most of them are lawyers for Canada, I actually felt bad for them. Because they were carrying out instructions from a rather mean-spirited government at the time and they realized that this was an injustice to this survivor, this victim of sexual abuse. But they did what they had to do and the adjudicator was obviously frustrated. Quite honestly we looked for ways to make it comply with the agreement and weren't successful in doing so.

The federal government needs to draw the line somewhere. How do you think the government should have handled this?   

Well it's not much of a line when you think about it. First of all, this was an attempt, a fairly successful one I might add, to deal with a historical injustice, to right a historical wrong and provide some justice to survivors. The application of the model in the technical sense is not only mean-spirited, as I suggested, but also quite short-sighted. Because all that happens is that this case then falls outside of the Independent Assessment Process and we simply start a claim outside of the settlement.

So the net result of the short-sighted decision by the government to take this approach to these types of cases is they're now dealing with hundreds of files that we're doing, where the claims are just in the ordinary courts. And we'll be looking for a lot more money in the court system then we would be entitled to in the IAP.

So in the end it actually costs the government a lot more money and it is that much more painful for the survivor, the victim.

How many cases from the North are you aware of that were rejected by the Independent Review Process?

I don't know the actual numbers, but of our cases there's probably 10 or 20. Then there's quite a number of cases where we recognized that they wouldn't be covered by the IAP and we just commenced an application in the superior court.

Those files that were rejected, or were not initially even put into the AIP, are going to be the subject of an internal review by our lawyers, to determine under the new government mandate, if it does come to fruition, whether these are claims that should be advanced.

We don't know. Some of these cases are quite old. But it seems now across the country we have a government with a different mandate, a real intent to try to deal with wrongs in a compassionate and sensitive fashion and for that reason we are going to go back and see if there's anything we can do for our clients who, for one reason or another, were not accepted within the IAP.

If former students want to revisit their case, what should they do?

Well the best thing is to go back to the lawyer that actually dealt with the initial case. If you're a client of ours and your claim was rejected, you'll probably be getting a call from us in the next couple of months, but certainly they're free to contact their lawyers.