Day school settlement has paid out $5.7B in claims. A Supreme Court petition says survivors were shortchanged
Multibillion-dollar deal was supposed to bring justice but brought more pain for some
WARNING: This story contains details of experiences at Indian day schools.
A Cree survivor of the federal Indian day school system is asking Canada's top court to intervene in a multibillion-dollar settlement agreement amid allegations survivors have been shortchanged and retraumatized by the compensation process, CBC News has learned.
Jessie Waldron, 65, fought and lost to the federal government before the Federal Court in 2021 and the Federal Court of Appeal in January 2024 for the right to amend her compensation claim with additional evidence of abuse.
Now she wants the Supreme Court of Canada to step in because she says the government, the claims administrator and the law firm that struck the 2019 settlement agreement on behalf of survivors have failed to represent their best interests.
Lawyers for Waldron, who attended the Waterhen Lake Indian Day School in northern Saskatchewan in the 1960s and 1970s, filed a leave to appeal with the top court on Friday.
The case pits Waldron against the federal government, Deloitte — the auditing and consulting firm appointed to administer the settlement — and Gowling WLG, the law firm that represents survivors within the agreement.
Waldron told CBC News she was overwhelmed by the claims application and only filed for the minimum $10,000 compensation, even though her lawyers say she was potentially eligible for up to $150,000 based on suffering she endured at day school.
"I felt traumatized again, victimized again," Waldron said. "Humiliated."
Waldron said she could never get through the legal hotline set up to help survivors with the process. At one point, she drove 10 hours from her home in Grand Prairie, Alta., to Waterhen Lake, Sask., for a scheduled community visit with lawyers from Gowling. But when she arrived, she found out the meeting had been cancelled.
"I was angry," Waldron said.
Waldron attended the day school, which was 370 kilometres northwest of Saskatoon, from kindergarten until Grade 6. As one example of what she suffered, Waldron said she was forced to undergo painful teeth extractions at the school without her parents' consent.
"They just opened our mouths and just held us down," she said.
"They started pulling my teeth out before they even froze."
To this day, Waldron said, she has difficulty going to the dentist and now warns staff before procedures about the trauma she experienced.
Expediency, cost overshadowed needs of survivors, lawyer says
Waldron hired her own lawyer, Nicholas Racine, to resubmit her claim, but Deloitte refused to consider it.
Racine said it's important for the top court to hear Waldron's case because day school survivors need more flexibility built into the settlement.
"These aren't insurance claims," said Racine, who works for Bergerman Smith LLP in Saskatoon.
"These are claims dealing with real people who are victims of abuse as children."
Racine said he's been contacted by hundreds of other claimants who filed for the lowest category of compensation because they couldn't understand or get any advice on how to apply for the higher levels.
He said they didn't get help from Deloitte or Gowling, the Ottawa-based international legal firm that received $65 million to administer the deal, and haven't been able to resubmit their claims.
"Expediency and cost-effectiveness overshadowed what was really important," Racine said.
It could take a few months for the Supreme Court to decide whether to hear Waldron's case.
Lead plaintiff wants review of settlement
Day school survivors were shut out of the $1.9-billion Indian Residential School Settlement Agreement brokered in 2006.
More than 150,000 First Nations, Métis and Inuit children attended residential schools, while approximately 200,000 were forced to attend nearly 700 federally operated day schools for more than a century.
Unlike residential school survivors, day school students remained in their communities and went home in the evenings, but they suffered similar abuse and faced cultural assimilation.
In 2019, the Federal Court approved a $1.47-billion settlement agreement as a result of a class-action lawsuit by day school survivors.
The settlement was meant to avoid adversarial hearings with federal lawyers questioning survivors, like Indian Residential School Settlement Agreement.
Under the day school settlement, all survivors had to do was fill out a form.
From the beginning, Margaret Swan, one of the lead plaintiffs of the class-action that led to the settlement, heard concerns.
"Deloitte was not very empathetic, respectful or understanding," Swan said.
"They, in fact, were interrogating our people."
Swan said many survivors were also unaware they could get help from Gowling through a hotline.
She said she amassed hundreds of complaints from survivors and shared the feedback with Gowling and the federal justice minister, but hasn't heard back.
"It's difficult to hear people's experiences and even more so when you know they're being revictimized through a process that we thought would be fair, just and empathetic," Swan said.
"And I was part of setting that up."
Swan is calling for an independent First Nations-led review of the settlement, and other settlements involving Indigenous survivors of the abuse.
Most claims filed for least amount of compensation
Under the agreement, survivors could apply for five levels of compensation, ranging from $10,000 for verbal and physical abuse at Level 1 to $200,000 for repeated sexual abuse. Each level of claim required more detail and corroborative evidence.
The federal government set aside $1.27 billion for Level 1 claims — the lowest amount — and agreed to pay all higher levels of compensation awards. A legacy fund of $200 million was also set aside to support wellness and cultural projects for survivors.
Out of 184,969 claims filed, 129,715 were for Level 1 abuse claims and 53,851 for levels two to five, according to a Feb. 5 update from Deloitte.
So far, 148,733 claims have been paid, totalling $5.7 billion, according to Crown Indigenous Relations.
A majority of claims — 110,885 — were paid at the lowest level of compensation, and 37,848 at levels two to five.
Waldron's lawyer, Carl Swenson, who filed the application for leave to appeal with the Supreme Court, said the disproportionate number of Level 1 claims compared to the other categories raises red flags.
Swenson has completed more than 500 claims for survivors, and said well above 80 per cent involve Level 4 and 5 abuse categories.
"When people sit down and talk about bullying, the straps, I can't see how that many people could be level ones," said Swenson, who works at CHS Law in Saskatoon.
CBC News put the issues to David Lametti, who was the federal attorney general when the settlement was approved.
"There's serious concerns," said Lametti, who now works at the Fasken Martineau Dumoulin law firm in Montreal.
Lametti said his government had good intentions when it decided to settle instead of continuing litigation. He said the government tried to simplify the claims process to avoid triggering trauma.
"It's not a perfect process, but we thought we had improved it," Lametti said.
"To the extent that mistakes were made, and certainly mistakes were made, hopefully we get it better next time."
Ottawa considered replacing Gowling as class counsel
Both Gowling and claims administrator Deloitte declined CBC's interview requests. The firms answered email questions through Castlemain, an Indigenous advisory group co-owned by the communications firm Argyle.
When asked how Deloitte and Gowling respond to concerns CBC News heard from survivors, a spokesperson for Castlemain said the firms wouldn't comment "on third-party views" about the court-approved deal.
To date, Ottawa has paid Deloitte $115.4 million for the administration of the deal, according to Crown-Indigenous Relations.
Gowling received $55 million for its work on the settlement and $7 million to offer legal services for claimants over a four-year period.
But CBC News has learned that Gowling planned to end its free legal services for claimants by Jan. 14, 2024, unless it received an additional $6 million over three years.
Ottawa offered $3 million over two years and the two sides clashed before the Federal Court.
"It's difficult to see why so much money is required at this time," said Catharine Moore, senior general counsel for Justice Canada, in an audio recording of a Dec. 5, 2023, case conference hearing provided to CBC News by the Federal Court.
Moore also said the federal government was considering replacing Gowling with an Indigenous-led firm.
A compromise was reached between the federal government and Gowling giving the law firm an additional $3 million to extend legal services until July 13, 2025.
Jasminka Kalajdzic, a law professor and founding director of the class action clinic at the University of Windsor, questions why a similar openness to revising the settlement agreement wasn't given to class members.
"It's that flexibility that I would have liked to have seen when Ms. Waldron, for example, asked for relief when it came to filing an amended claim form," she said.
Ottawa will 'learn from this,' minister says
The settlement is also facing a separate legal challenge before the Federal Court of Appeal from survivors seeking to reopen and extend the application deadline, which ended on Jan. 13, 2023.
The case was launched by the elected council of Six Nations, a Haudenesaunee community near Hamilton, Ont., and day school survivor Audrey Hill, who had trouble accessing records to support her claim during the COVID-19 lockdowns. The process also resurfaced her buried trauma.
"I had a block," said Hill from Six Nations of the Grand River.
Her lawyer, Louis Sokolov, also helped file Waldron's leave of appeal application with the Supreme Court.
"These settlements are premised on reconciliation," said Sokolov, who works with Sotos LLP in Toronto.
"We think that the Supreme Court of Canada should tell us what that means in the context of Indigenous class-actions."
Crown-Indigenous Relations Minister Gary Anandasangaree said he's only aware of one complaint about the settlement, which he brought to the attention of class counsel.
He said the agreement is supposed to be survivor-centric and committed to addressing any issues that come up.
"Is it perfect? I don't believe it is," Anandasangaree said.
"We will learn from this.… Individual claimants are supposed to get the maximum they're entitled to."
Health support services for survivors and others impacted by the federal day school system can be found here.
Crisis intervention services are available through the Hope for Wellness Help Line, which is available 24 hours a day, seven days a week through the toll-free line 1-855-242-3310 or online chat.
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